INDIANA PROSECUTORIAL MISCONDUCT
The study of criminal appeals from 1970 to the present revealed 475 Indiana cases in which defendants alleged prosecutorial error or misconduct. In 21, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In 11, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Out of the defendants who alleged prosecutorial error or misconduct, two later proved their innocence.
Out of the 21 convictions that appeals judges reversed, 16 involved prejudicial trial arguments, questions or comments. The remaining five stemmed from the prosecution withholding exculpatory evidence from the defense.
In 1997, Brian Penley stopped in front of a grocery store to drop off his son. In doing so, he blocked traffic. Paul Zeman, driving another vehicle in front of the grocery store, tried to maneuver around Penley. Somehow one of the cars collided with the other. Zeman got out of his vehicle and walked up to Penley. He said Penley then pointed a gun at him, and he told his family to call the police.
A Westfield police officer arrived at the scene and interviewed Zeman and two witnesses. In her report, she indicated that both witnesses verified Zeman’s version of events—that Penley had pointed a gun at him. A jury convicted Penley of pointing a firearm.
After the trial, Penley discovered that the prosecutors had provided him with an inaccurate name for one of the witnesses. (The Center was unable to determine the identity of the prosecutors.) Upon learning her real name, Penley’s counsel interviewed the witness. She said she was within ten feet of Penley’s vehicle and did not see any weapon. She also said she had given her name to the officer who arrived at the scene.
In 2000, Penley appealed his conviction, alleging the state knew about evidence of his innocence and withheld it from his defense counsel.
In response to Penley’s appeal, the state explained that the prosecutors did not know about the witness or her statement. The appeals court dismissed that theory and reversed Penley’s conviction because the state withheld exculpatory evidence.
“The State’s representation that there were two named eyewitnesses who supported Zeman’s version of the incident and its failure to provide the defense with [a witness’] correct name prior to trial were misconduct,” wrote Second District appeals court judge Melissa Mattingly.
In 2001, the Fifth District appeals court reversed Debbie Trice’s murder conviction because Marion County prosecutor Stan Kroh used her right to remain silent against her at trial. The appellate court noted seven questions posed during cross examination and one third of Kroh’s closing argument inferred guilt from Trice’s decision to remain silent.
“The prosecutor’s improper comments regarding Trice’s silence, both on cross-examination and in closing argument, were directed at Trice’s assertion that the shooting was accidental and not intentional,” wrote appeals judge Melissa Mattingly. “In that context, the…violations subjected Trice to grave peril and had a probable persuasive effect on the jury’s decision.”
In another case, Larry Mayes alleged, among other things, that the prosecutor who tried him used his right to remain silent against him during his rape trial. (The Center was unable to determine the identity of the prosecutor.) The appeals court disagreed and upheld his conviction. In that appeal, the court also ruled against Mayes’ allegation that the evidence against him was insufficient to uphold his conviction.
Seventeen years later, DNA tests exonerated Mayes.
By Oklahoma State Representative Bill Graves
Dateline Magna Carta News of Oklahoma City, Oklahoma
In Lawrence v. Texas, the U.S. Supreme Court continued its assault on the Constitution and republican government by holding 6-3 that Texas' anti-sodomy statute violates the Constitution. With Lawrence the Court elevated sodomy, which has been universally recognized since the beginning of time as a sexual perversion, to the status of a constitutional right. In so holding, the Court overturned its own 1986 precedent in Bowers v. Hardwick in which it held 5-4 that Georgia's anti-sodomy statute was constitutional. Lawrence jeopardizes enforcement of Oklahoma's anti-sodomy statute.
The Court obviously still could not say, as it would not in Bowers, that sodomy is a fundamental right. It was instead a part of the "liberty" of the 14th Amendment's due process clause. To this, Justice Scalia, dissenting, noted that under the 14th Amendment the State may not deprive a person of liberty without due process -- thus implying that such liberty may be taken with due process. It was part of that liberty because, the Court said, the practice of sodomy is a part of the "right of privacy" -- a new right the Court discovered in 1965, not in the words of the Constitution but "in penumbras formed by emanations from the Bill of Rights."
The Justices are fully engaged in social and cultural engineering. George Washington said those who labor to subvert religion and morality may not be called patriots. Yet subverting religion and morality is exactly what the Court is doing. It is in the business of changing America from the Christian nation the Court said America was in 1892, to an anti-Christian secular state whose religion is secular humanism. Even though Christianity and the Bible condemn homosexuality as an evil, the Court in Lawrence said "(t)he state cannot demean" homosexuals. In Romer v. Evans, the Court invalidated a law prohibiting favored treatment of homosexuals. Such Christian condemnation was tantamount to bigotry.
In Bowers the Court affirmed the right of legislators to legislate based on moral concepts. Now, as a result of Lawrence, which was justified in part on foreign nations condemning Bowers, Justice Scalia observed, same-sex marriage may be just around the corner. Laws against bigamy, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are also in jeopardy.
The Court has even altered the meaning of the word "liberty" as used in the 14th Amendment's due process clause. As originally understood, it meant only "the right to have one's person free from physical restraint." Yet the Court in Lawrence, repeating its bogus and solipsistic "sweet mystery of life" statement (as Justice Scalia called it) it first made in an abortion case, said, "At the heart of (14th Amendment) liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." When the Framers spoke of liberty, they meant, not licentious self-indulgence, but the liberty to do that which is good, just and honest, or liberty under lawful moral constraints. They realized, as Edmund Burke said, that "men of intemperate minds can never be free; their passions forge their fetters."
The Court, in its nihilistic quest to alter the culture, has, among other things, banned prayer to God and Bible study in public schools because, it said, such practices violate the ‘wall of separation’ between church and state even though no such wall is found in the Constitution. Posting of the Ten Commandments in public schools was also banned because it might induce the children to (God forbid) "obey" them. Conversely, the Court prohibited a public school from banning from its library books that were vulgar, obscene, "anti-American, anti-Christian, anti-Semitic and just plain filthy." It created the right of privacy and then found in it a right to abortion even though the Constitution makes no mention of such a right. Now sodomy is included. The Court has rewritten the law as to free speech and created protections for pornography and obscenity.
The Supreme Court, in its contempt for representative government, has in the last 14 years overridden direct elections by the people in ten different cases, including Romer. Also among these was Missouri v. Jenkins, in which the Court revived the concept of taxation without representation, by overruling a vote of the people, and affirmed an order for a massive tax for public education.
Such rulings and others equally outrageous have not been made because they are required by the Constitution as written, but because the Court no longer sees itself as bound by the words of the Constitution (as they swear to be) as Chief Justice John Marshall said it should be. Rather, the Court views the Constitution as a living, evolving document that means anything a majority on the Court says. Thomas Jefferson warned of such a lawless Court when he said, "The Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."
As a result, majority rule, which George Washington called "(t)he fundamental principle of our Constitution," is being destroyed. James Madison, the Father of the Constitution, said under our government the legislative branch necessarily "predominates." Alexander Hamilton said the judiciary was the "weakest" branch of government by which "the general liberty of the people can never be endangered..." This has changed. We now have minority rule. What radical liberals cannot accomplish through majority vote by their elected representatives, they now obtain through majority vote of unelected judges. As a result, we in effect no longer have a Constitution or republic, but government by judiciary.
What is worse, the People and their elected representatives continually, by their inaction, concede without a whimper that our imperial judiciary virtually has carte blanche to say the Constitution means anything it wants it to mean. This brings to mind an anecdote related by Robert Bork. A new State Supreme Court Justice upon meeting a U.S. Supreme Court Justice said, "I"m delighted to meet you in person because I have just taken an oath to support and defend whatever comes into your head." Congressional leaders seem to think that the only thing that can be done is to urge appointment of conservative constitutionalists to the Court, or urge passage of constitutional amendments to correct judicial excess. However, there is a better solution.
Prof. James McClellan, referring to liberal Justices, said, "We call them Justices; the Founders would have called them tyrants." The real problem is not a defective Constitution, but tyrannical judges. Proposing constitutional amendments to correct judicial imperialism implicitly concedes that the Court's despotic constitutional interpretations are correct. They legitimize the abuse of power and do not address the fundamental problem of judicial despotism. "Tyranny" is of course the arbitrary and unlawful exercise of authority. The Court is usurping power that belongs to the people and their elected representatives. Chief Justice John Marshall called such usurpation "treason to the Constitution." It is, George Washington said, "the customary weapon by which free governments are destroyed."
The People of America and their elected representatives must draw the line and reclaim their Constitution and republic. Congress has the power, under Article II, Section 4(l) to remove judges from office, by impeachment and conviction of "treason, bribery, or other high crimes and misdemeanors." Article III, Section 2(l), allows Supreme Court and other federal judges to hold office "during good behavior."
It is now generally believed that grounds for removal under impeachment must be only for treason, bribery or for violation of a criminal statute. However, David Barton, in his book Impeachment: Restraining An Overactive Judiciary, has documented that the Framers of the Constitution had a much broader view. Barton states that "impeachments of federal judges in the century-and-a-half following the ratification of the Constitution usually revolved around non-statutory and non-criminal charges rather than today's standard of a direct violation of statutory law."
Justice Joseph Story, the U.S. Supreme Court's greatest scholar, believed such a restriction was preposterous and said, "No one has as yet been bold enough to assert that the power of impeachment is limited to offenses positively defined in the statute book of the Union as impeachable high crimes and misdemeanors." Justice Story said impeachment was for protecting the rights of the people "and to rescue their liberties from violation," and a remedy for "political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of public interests," as well as a check upon "arbitrary power." So were "unconstitutional opinions" and "attempts to subvert the fundamental laws and introduce arbitrary power."
Founding Father and later Supreme Court Justice James Wilson said "(i)mpeachments are confined to political characters, (and) to political crimes and misdemeanors.." George Mason, who is called "the Father of the Bill of Rights," saw impeachment as a remedy for "attempts to subvert the Constitution." Hamilton said the subjects of impeachment are those which may "be denominated political." Justice Samuel Chase was impeached for his judicial high-handedness and arbitrary uses of the judicial power. Barton also points out that one federal judge was impeached for supporting the secession movement. Federal judges were removed from office in 1904, 1912 and 1926 for judicial high-handedness.
Judge Robert Bork warned that lawless Courts are "engaged in civil disobedience, a disobedience arguably more dangerous, because more insidious and hence more damaging to democratic institutions, than the civil disobedience of the streets." The Battle of Bunker Hill was not fought and the Founders did not pledge their "lives, fortunes and sacred honor" to empower federal judges to twist, as Jefferson said, the Constitution into any form they please. If constitutional liberties are to be restored and republican government preserved, Congress must utilize its constitutional impeachment power.
(Bill Graves is a lawyer and a member of the Oklahoma House of Representatives.)
-30-
