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Prosecutors have all the power 

But little oversight. Is a violation not a violation if a prosecutor says, 'I didn't mean to'?

"Don't get me wrong," Dwight Brown said. "I love dogs — love hounds — when they're out in the woods."

But when his neighbor had five dogs, he said, two of which were hounds, and "those old squirrels would get up in the trees around their pens," the howling became a nuisance.

Brown said it was even more aggravating that his neighbors let their three other dogs roam free, to "go around trashing yards," and that the situation persisted for 10 years, despite complaints to city officials.

Brown lives and owns a business in Wynne. The city has a leash law, as well as an ordinance limiting the number of dogs per household to two.

Brown believes his neighbors' professional clout kept authorities at bay. Kathleen Talbott, Wynne's city attorney, shares a practice in Wynne with her husband, Michael L. Ladd.

Ladd was the attorney for Cross County, and more importantly, a deputy prosecuting attorney for the state's First Judicial District, where he served under Fletcher Long Jr., the district's elected prosecuting attorney.

Ladd's professional responsibilities required intense cooperation with city and county officials, courts and police. But Brown said that, in the past, when he complained to Long about Ladd and his dogs, Long took no action.

"He's the boss like I am," Brown said. "He's supposed to have control of his employees — the way they represent his office to the community. I expected Mr. Long to do something, but that didn't happen."

Brown installed a video surveillance system at his home, hoping to gather evidence of the dogs' running free. Last year, he got city officials to issue Ladd a citation regarding his dogs. After that, Brown said, on Aug. 13, 2013, a car containing three men pulled into his driveway at 12:53 a.m. "They were honking and cussing," Brown said, and when his wife opened the door, one man yelled, "You die!"

According to Brown, video from that night shows Michael Ladd, his brother, and an unidentified man in the car. The video reportedly also captured the moment when Ladd's brother "got out of the car and mooned us."

"Michael Ladd is just a drunk and a bully," Brown said. Now, armed with the video, Brown wanted someone to rein his neighbor in.

Police would not do it, he said, and neither would Long. So, about 10 months ago, when it had become apparent to Brown that Long was "stonewalling," he called the state Prosecutor Coordinator's office in Little Rock.

"The gentleman I spoke with said they knew of Mr. Ladd," Brown said, "but I was told that they can't tell a local prosecutor what to do. He said the local prosecutor, Fletcher Long, has control of his district."

'Authority to investigate'

Brown did not know at the time that he could also have reported Ladd to the Arkansas Supreme Court's Office of Professional Conduct (OPC), the section established to enforce the court's Rules of Professional Conduct for Attorneys.

If the OPC finds that an attorney has committed some kind of misconduct, it can refer the matter to a committee that has authority to issue the offending attorney a sanction ranging from the mildest — a caution — to something as severe as suspending or revoking of an attorney's license.

But in this writer's experience, complaints against prosecutors have proven problematic. Stark Ligon, the OPC's executive director, once informed me by letter that the office had "no authority to review the discretionary actions of appointed or elected officials." But if neither the Prosecutor Coordinator's office nor the Supreme Court's Office of Professional Conduct can compel a prosecutor to obey the law, or require him to hold his subordinates accountable, who can?

I turned to Stephanie Harris, the Supreme Court's media liaison, for clarification. Did the OPC really consider prosecutors — both elected and appointed — off-limits? Her response contradicted what Ligon had written to me.

"I have spoken with Mr. Ligon," Harris wrote. "He said that his office always has the authority to investigate allegations of violations of the Rules of Professional Conduct, whether the attorneys are elected or appointed. The Committee's authority does extend to the professional conduct of all attorneys.

 "If the alleged conduct involves violations of the Rules of Professional Conduct, the Committee would investigate the attorney general, elected prosecutors, and 'appointed' officials who are attorneys. Elected and appointed attorneys are not exempt from professional oversight."

The question then becomes: Is the OPC sanctioning prosecutors?

Ligon's office began posting records of the actions it takes against attorneys online in February 2001, when it suspended President Bill Clinton's license to practice law in Arkansas.

By now, the number of sanctions listed comes to just under 750. I could not find any prosecutor I've known on that list — a fact that Bob McMahan, who has been the state's prosecutor coordinator since 1997 (and with that office since 1987), does not find surprising.

Though Arkansas currently employs 28 elected prosecutors and 245 deputy prosecutors, McMahan said that in his 25 years' experience, he could not recall a prosecutor having been sanctioned.

In fact, the only attorney contacted for this article who thought a prosecutor might have been sanctioned was Larry Jegley, the prosecuting attorney for Central Arkansas's Sixth Judicial District. He mentioned one of his deputies who, he thought may have once been cautioned. But no record of a sanction for that attorney appears on the OPC's web page.

'The most powerful person'

Years ago, a prosecutor told me, without a trace of hubris: "I'm the most powerful person in this county — in several counties, actually." He noticed my surprise.

"Think about it," he said. "When it comes to the ability to affect individual lives, no other official — not the governor, not the head of the State Police, not the chief justice of the Supreme Court — holds as much power as a prosecuting attorney."

Brown made roughly the same observation. Asked to describe Long, Brown simply said, "He pushes a lot of buttons."

A district's elected prosecuting attorney and the attorneys he or she hires have the ability, as one prosecutor told me, "to get the ball rolling, merely by filing charges." He added, "That alone is going to make a dramatic change in someone's life."

The decision not to file charges can have an equally great impact, as in Brown's case, or when victims of serious crimes are upset because no one has been charged.

Charging decisions can at times be very tough calls. The prosecutor must weigh hefty issues such as the community's safety, the rights of a person accused, and the strength of the case made by police.

Even if charges are filed and subsequently dropped, or a jury finds the defendant not guilty, the fact that the person was charged in the first place can never be undone.

But prosecutors' powers far exceed that. They decide how many and the severity of the charges to be filed, the sentence to be sought, and the tactics to be used at trial — if there will be a trial.

The war on drugs has flipped the justice system in the past 40 years, resulting in more arrests than courts could possibly handle. As a result, more than 90 percent of all convictions are now obtained through plea deals — contracts — that prosecutors negotiate with defense attorneys.

In addition, prosecutors are responsible for seeing to it that all pertinent information obtained by the state — via police, the crime lab, witness interviews or through other powers that are only available to the state — gets conveyed to defendants' lawyers. So, whether a criminal case is settled in a trial or through a plea deal, rules have been established to ensure that defendants are not handicapped in their negotiations or trials due to information the state had withheld from them.

Serving as a gatekeeper of this information may be a prosecutor's most critical role — and the good ones take it seriously. When I spoke with Jegley, for instance, he told me he had recently made an appointment with Little Rock's new chief of police, to stress the importance of officers' credibility.

That's because, if information that should be turned over to the defense is not — whether by police, crime lab officials or anyone else on the state's side — responsibility for that failure rests with the prosecutor. As Jegley put it, "If they knew about it, I knew about it."

That same concern led to the firing of a police officer in Mayflower last month. Cody Hiland of Conway, the prosecutor in that district, told Mayflower's police chief that the officer had withheld evidence that tended to exonerate a woman who'd been accused of theft.

Withholding such evidence, Hiland told the chief, "places your city and my office at risk of civil and/or criminal liability" and undermines citizens' trust.

While prosecutors represent the state in criminal trials, state supreme courts — including ours — and the American Bar Association, require prosecutors to be more than just advocates. They are also expected to serve the state as "ministers of justice."

In other words, achieving justice in every case is supposed to take precedence over winning. That is a legal and ethical obligation.

In Arkansas, it is spelled out both in the Supreme Court's Rules of Professional Conduct and in its Rules of Criminal Procedure. A prosecutor's duty to disclose was also spelled out by the U.S. Supreme Court.

Fifty-one years ago, in the famous case of Brady v. Maryland, the nation's high court laid down the law that withholding pertinent information from a criminal defendant at trial violated the defendant's constitutional right to due process.

In other words, a prosecutor who withholds information from the defense is committing a much more serious offense than, say, violating a city's animal control ordinances, or even harassing his neighbors.

But, though Arkansas courts have reversed several convictions due to Brady violations, the Supreme Court has never cited any of the prosecutors responsible for them with misconduct.

'No one can be sued'

For decades, it was hard for many to believe that wrongful convictions occurred in our system of justice. But now that nearly 1,500 prisoners have been exonerated through DNA evidence, reviews of several wrongful convictions have exposed prosecutor misconduct at trial.

For nearly 40 years, however, prosecutors have been protected against civil liability, thanks to another U.S. Supreme Court ruling that tried to spare prosecutors from having to worry about "shading" their charging decisions for fear of liability. But, in granting prosecutors immunity for actions performed as part of their jobs, that court presumed that state supreme courts would hold them accountable.

Writing in Imbler v. Pachtman, the U.S. Supreme Court observed that "... a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in their amenability to professional discipline by an association of his peers."

Yet, despite the court's confidence in the self-regulation, public concern about Brady violations and other forms of prosecutor misconduct have only grown.

Awareness of Brady, in particular, intensified in 2009, after a whistle blower produced evidence that federal prosecutors had withheld exculpatory evidence at the trial of U.S. Sen. Ted Stevens of Alaska. A jury had found Stevens guilty of corruption.

But after evidence of the prosecutors' misconduct was confirmed, the judge in Stevens' case vacated his conviction and held his prosecutors in contempt of court, accusing them of what he called the worst case of prosecutor misconduct he'd seen.

Two years later, however, the U.S. Supreme Court extended protections for prosecuting attorneys. In 2011, a sharply divided court ruled in Connick v. Thompson that a Louisiana man who'd been imprisoned for more than 18 years could not sue the prosecutor whose deputy had withheld his exonerating Brady material.

The prisoner, John Thompson, had faced seven execution dates before the charges against him were dropped. After the U.S. Supreme Court's ruling he wrote:

"I don't care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn't do, and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued."

Critics howled that the ruling in Connick gave prosecutors almost total immunity. The Innocence Project, which had supported Thompson, said the ruling "begged the question of what, if anything, can prosecutors be held accountable for."

But responsible prosecutors do not rely on immunity. In 2012, the prosecuting attorney in Oklahoma City fired two deputy prosecutors a month after they had prevailed in a murder trial, when it was learned that they had withheld potentially exculpatory information.

"The gravity of their alleged ethical violation is so great," District Attorney David Prater said, "that only one punishment equals their transgression."

Last year, Troy Rawlings, a prosecuting attorney in Utah, fired a deputy for behavior that included a Brady violation. The state bar association investigated and recommended that the fired attorney be sanctioned.

"This type of misconduct is aggravated," Rawlings wrote in his deputy's notice of termination. "It goes to the heart of the criminal justice system. Prosecutors who engage in such are a cancer on the system and undermine public confidence."

Similar sentiments are also being voiced on the federal level. Last year, the chief judge of the U.S. 9th Circuit Court of Appeals, Alex Kozinski, decried what he called an "epidemic" of prosecutor misconduct "abroad in the land."

'Holy-shit moments'

In Little Rock, Jegley acknowledges the complexities inherent in complying with Brady, especially in an office that would rank as one of the biggest law firms in the state. Asked about an "epidemic," he responded, "I don't see it."

Jegley stressed that he and his 45 deputies recognize that they "have a continuing obligation to be forthcoming" with evidence that they gather from a wide array of sources over what could be months or even years before a trial.

Because the duty to disclose falls squarely on the prosecutor, Jegley said he and his staff have to stay "hyper-vigilant." That means, he said, that they have to be honest, keep careful records, maintain trustworthy relationships with other agencies, and guard against the kind of intense "tunnel vision" that attorneys can easily develop as they head into a challenging trial.

Even so, he said, there have been some "holy-shit moments" just before the start of a trial, when someone on his staff realized that something required had not been provided to the defense. Jegley said the only option he had was to ask the court to delay the trial until matters could be set right.

But what happens if one of those moments isn't caught? What if a Brady violation makes its way into a trial?

One answer is that the withheld information may never be discovered. Tom Sullivan, a professor at the University of Arkansas at Little Rock's Bowen School of Law, recently wrote:

"Claims of prosecutorial misconduct in the suppression of exculpatory or impeachment evidence are among the most difficult claims to prove ... in part because the very act of suppression of favorable evidence means that neither the accused nor counsel has access to the evidence."

Even when a violation does come to light — often long after a conviction — official "remedies" rarely suffice. A prisoner may be freed from prison, as was Gyronne Buckley, who was sentenced to life in prison on testimony from an unreliable informant coached by a dirty cop, but the chunk of Buckley's life the state had unjustly taken could never be replaced.

Many states now try to make amends with money, but Arkansas denied Buckley that, even though he had spent more than 11 years in prison due to Brady violations, and the state Claims Commission voted to award him $460,000 in compensation for its prosecutor's misconduct. Buckley's payment was denied, however, when the claim went to a legislative committee for approval.

Attorney General Dustin McDaniel, the state's top prosecutor and top law enforcement officer, went to the senate committee authorized to pay Buckley and vigorously opposed paying Buckley by minimizing the state's misconduct.

McDaniel said that all that was at issue in Buckley's case was a videotape (which proved the informant had been manipulated by police) that had "wound up in a drawer somewhere or a box somewhere, and it was not disclosed to the defense, and it should have been disclosed to the defense."

What McDaniel did not tell the legislators was that, even when the tape's existence was discovered, six years after Buckley's conviction, McDaniel himself had argued against turning it over to Buckley's lawyers — until a federal judge ordered it released.

So the prosecutor at Buckley's trial violated Brady's requirements, and maybe the attorney general did, too. But, as surely as Buckley never got paid, no state prosecutor ever got sanctioned for the wrongdoing that put Buckley in prison.

'In no way intentional'

While it is impossible to know how much other Brady material lies undiscovered in a box or a drawer "somewhere," unmentioned and unmoved, the problem clearly persists. Buckley and the cases below may represent just the visible tip of a large judicial iceberg.

In 2011, the Arkansas Supreme Court denied an appeal by Billy Green, who was convicted of murdering a family in Northeast Arkansas. In denying that appeal, however, the court noted that the deputy prosecutor handling Green's case had "conceded" that a potentially exculpatory statement by Green's son "should have been provided to the defense and that a Brady violation had occurred."

Similarly, at a hearing in Ashdown last October, Circuit Judge Charles Yeargan found that a Brady violation had occurred in the case of Tim Howard, about whom I've written here before. After Howard had spent almost 15 years on death row, Yeargan vacated his conviction and ordered a new trial. That is now scheduled for March.

In ordering the new trial, Yeargan noted that the prosecutor at Howard's trial, who is now a circuit judge, had not "intentionally" withheld the Brady material, suggesting that lack of intent meant that no misconduct had occurred.

As recently as June — and in the same vein — the state Supreme Court affirmed the Pulaski County murder conviction of Donnie Maiden. The Court acknowledged that a Brady violation had occurred in Maiden's trial, but took pains to note that the prosecutor had apologized for his mistake in court and assured the judge that his failure to disclose had been "in no way intentional."

The prosecutor in Maiden's case was John Hout, and Larry Jegley is his boss. Jegley said he does not believe that Hout broke any law and added that, "the minute John realized he'd made a mistake he took action to correct it."

Moreover, Jegley said, Hout had reported himself to the Office of Professional Conduct — and had recently been notified by Ligon's office that no action would be taken against him.

"It was just a dumb mistake," Jegley said. But he acknowledges that it was a serious one. "We're using it and Connick and what happened in Oklahoma City as a wake-up call for everyone to pay extra attention," Jegley said, "because the criminal justice system has to be fair."

For Jegley, that duty to be fair extends beyond conviction, as when he learned shortly after winning a conviction in a drug trial that one of the state's witnesses had "gone south on us."

Jegley became aware of the situation when he got "a personal visit from the U.S. attorney's office," informing him that Sedrick Reed, an Arkansas State Police lieutenant who had testified at the trial, had just been arrested as part of a drug distribution ring. Jegley said he told his federal counterpart, "Thanks a hell of a lot."

"I think that happened on a Thursday," he said. "And the first thing Monday morning, we vacated the conviction."

Was Jegley required to undo a conviction his office had won? The American Bar Association says that after a conviction, prosecutors have a duty to report any "new, credible and material evidence" creating "a reasonable likelihood" that a convicted defendant did not commit the offense.

But, while the Arkansas Supreme Court adopted most of the ABA's rules for prosecutors, it opted not to adopt that one. As a result, a circuit judge told me, the question of what ethical responsibilities prosecutors and attorneys general have after the state has obtained a conviction remains "a gray area."

However, Jegley said that for him, the question was a no-brainer. "Even post-conviction," he said. "If it's exculpatory, the answer is, 'Yeah.' You disclose." He said that that message is being repeated nationally among prosecutors these days, as Brady issues have become what he termed "top-water topics."

In prosecutor groups he attends, Jegley said, "Everybody's thinking about it. Everybody's talking about it. And everybody agrees it comes down to training, training, training."

'Slap on the hand'

Back in Wynne, Dwight Brown does not know what kind of training Fletcher Long requires for his deputy prosecutors regarding their conduct, in and outside of court.

But he did finally find a way to draw some legal attention to his complaint against Ladd. He did it the old-fashioned way: He hired an attorney.

According to Brown, the attorney took Brown's video to District Judge Joe Boeckmann in Wynne, and that Boeckmann, in turn, wrote to Chief Justice Jim Hannah of the Arkansas Supreme Court.

Hannah then contacted McMahan, the state's prosecutor coordinator, whereupon Prosecuting Attorney Long and Judge Boeckmann recused.

That left McMahan, now armed with a request from the chief justice of the Supreme Court, free to appoint a special prosecutor. The special prosecutor, Jason Barrett, brought in the State Police to investigate, after which an officer wrote a report.

Barrett took that report to District Judge Jim Rhodes in DeValls Bluff, and on Aug. 12, Rhodes signed arrest warrants for Ladd and his brother, charging each with one count of harassment. Rhodes ordered the men to appear in court on Sept. 17.

That's a long, roundabout way to get a harassment complaint heard in court. That wasn't Brown's whole point, however.

"I knew if anything came of it, it would just be a slap on the hand," he said, "but something needed to be done."

Whatever happens in court this month, Michael Ladd's legal troubles may not be over. The same day in August that Ladd was charged, Barrett, the special prosecutor, wrote to the State Police again, asking that its investigation of Ladd be continued.

"Other potential criminal actions have come to light," Barrett wrote, "and my appointment as a special prosecutor has been extended to cover these other possible crimes ..."

On Sept. 2, during a recess in a court proceeding, Ladd told Long that he wanted to resign as deputy prosecuting attorney, reportedly due to stress. When asked about that news, Brown said he was not really surprised: "It was a train wreck waiting to happen."

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