This week, a state appeals court in Missouri vacated the conviction of 29-year-old Ryan Ferguson. In 2005, Ferguson was convicted for the murder of Kent Heitholt, a sports editor for the Columbia Daily Tribune. The only real evidence against him was the testimony of a friend, who later recanted, and testimony from an eyewitness who put him at the scene of the crime. That eyewitness also later recanted. Police found hair, fingerprints, and bloody footprints around Heithold's body, but none of that evidence implicated Ferguson. The state will now decide whether or not to retry him.
Unfortunately for him, Ferguson isn't out of trouble just yet. The Missouri Attorney General's Office has historically been one of the most stubborn in the country when it comes to accepting the possibility of a wrongful conviction. It has also been one of the aggressive in the country in pursuing convictions, particularly death penalty cases. (Ferguson had been sentenced to 40 years in prison.) Missouri The state ranks fifth in number of executions since the death penalty was reinstated in 1976. It also ranks fifth in executions per capita.
Consider the case of Reginald Griffin. Griffin was convicted in 1983 for the murder of an inmate at the Moberly Correctional Center. He was sentenced to death. In 2011, the Missouri Supreme Court found that the Missouri Attorney General's Office had withheld critical exculpatory evidence from Griffin's attorneys. The prosecutor watchdog site Open File details that evidence:
The Court found that the Missouri Attorney General’s office withheld information that prison guards had confiscated a sharpened screwdriver from another inmate, Jeffrey Smith, as Smith attempted to leave the area where the victim was stabbed on the day of the murder. The Missouri Supreme Court deemed this evidence exculpatory because it would have significantly bolstered Griffin’s alternate perpetrator theory at trial.
And this is not the only exculpatory evidence that the state has kept to themselves.
In 2005, when Griffin’s attorneys filed a writ of habeas corpus that would later be granted by the Supreme Court, they alleged that one of the state’s two key witnesses in the case had recanted his trial testimony. The witness, Paul Curtis, told Griffin’s jury that he saw Griffin stab the victim with a long curved knife. Upon receiving Curtis’s affidavit recanting that testimony, an investigator from the Attorney General’s Office met with Curtis to question him about it.
In a recorded interview in 2006, Curtis told the AG’s investigator that a prison investigator named Raymond Newberry had coached his testimony (going as far as to tell Curtis the identities of people in photographs so he could point them out in court, and providing information about the murder weapon so he would know how to describe it) in exchange for benefits such as a prison transfer, money, and a TV.
That's all bad enough. But it gets worse. Under Brady v. Maryland, a 60-year-old Supreme Court decision, the prosecutors were obligated to turn over this information. But the Attorney General's Office argued otherwise. Again from Open File:
Assistant Attorney General Stephen Hawke argued that his office was not obligated to turn over the evidence because it was elicited in the course of a civil proceeding (habeas corpus). Though this may be true procedurally, ethically it does not relieve the Attorney General’s office of its duty to disclose evidence that tends to negate the guilt of the accused, and to seek justice. Further, despite his knowledge of the truthfulness of Curtis’s recantation, Hawke not only hid the evidence that would conclusively establish the truthfulness of the recantation but he then specifically argued that Curtis recantation was coerced and false in a calculated effort to continue Griffin’s wrongful incarceration.
Regardless of whether Hawke is correct about his legal obligations, or whether the Open File folks are correct about his black-letter ethical obligations, there is a larger question here about a commitment to justice and fairness. A prosecutor always has the discretion to turn over more evidence than the minimum required under law and some minimalist interpretation of ethical guidelines. If he believes doing so is in the interest of justice, he very well should. Instead, too often in these cases where prosecutorial shenanigans are revealed in post-conviction, state attorneys general hide behind procedural rules to avoid copping to the fact that the state has made mistakes. Griffin was finally exonerated and freed two weeks ago.
For all the talk we hear from the law-and-order crowd about dangerous criminals who "get off on a technicality," there are plenty of examples of prosecutors relying on legal technicalities to argue against overturning questionable convictions, even in death penalty cases.
And it isn't as if there isn't a history of such questionable convictions in Missouri. There have been at least nine exonerations in the state since 2010. Six of those were for murder, one was for kidnapping, and two were for sexual assaults. In a feature on prosecutorial misconduct I wrote for HuffPost in August, I noted the particularly troubling history of former Missouri prosecutor Kenny Hulshof.
Kenny Hulshof was so good at winning convictions he was regularly called upon by the state attorney general's office to oversee death penalty cases. He has since been cited by two appellate judges -- one state, one federal -- for withholding evidence. In 2008, the Associated Press uncovered five other cases Hulshof prosecuted in which the defendant's guilt had since come into question.
I didn't include it in my piece, but in January the Missouri Supreme Court overturned a third Hulshof conviction, again finding that he and his team of prosecutors had withheld exculpatory evidence.
The general theme of that piece from August is that prosecutors who commit this sort of misconduct are never sanctioned for it. They're never really held accountable in any way. (Hulshof moved on from prosecuting death penalty cases to get elected to the U.S. Congress, and now has a high-paying gig at a top law firm.)
Every incentive points toward putting people in prison as frequently as possible. When there's no disincentive for going to far in pursuit of those convictions, you get a culture of conviction, where preserving a guilty verdict becomes the dominant priority, well above justice, fairness, and the integrity of the criminal justice system. That certainly seems to be what has happened in the Office of the Missouri Attorney General.
Finally, here's another statistic: Missouri ranks fourth in executions per death sentence since 1977. If we could be certain that everyone on Missouri's death row is guilty -- that there is little reason to doubt the integrity of a murder conviction in Missouri -- that statistic wouldn't mean much. But given what we've already covered in this post, we're nowhere near certain of any of that. Which means that the comparatively efficient rate at which Missouri converts convictions into executions might be the scariest statistic of all.
NOTE: This post has been changed to reflect Ferguson's age (29) and a corrected spelling of the victim's last name.