The New York Times usually gets it right, but the Newspaper of Record published an op-ed piece titled “How to Prosecute Abusive Prosecutors” containing a glaring factual error.
While we support the ACLU’s efforts and mission at PINAC News, we wish they would have returned our calls and emails this past week as we did our research.
The ACLU’s Brandon Buskey mistakenly reported that Missouri prosecutor Bliss Barber Worrell, whom we wrote about in October, was charged with a felony deprivation of civil rights violation when she was actually charged with a felony charge misprision of felony contrary to his column published November 27.
The words “cover up” ring off the lips like an epithet, but that’s the essence of the charge misprision of felony to which Worrell pled guilty.
It was the cop whom she tried to help, St. Louis police officer Tom Carroll, who was charged federally with felony depravation of civil rights under color of law.
We will also say the premise of ACLU lawyer Brandon Buskey’s article is correct, but without obvious precedent, certainly not so obvious as his story purported.
The public affairs officer for the US Attorney’s office in Western Missouri concurred with Mr. Buskey’s opinion in our phone conversation, that a deprivation of civil rights under color of law charge could theoretically be brought against a prosecutor under Title 18, Section 242.
That’s unfortunately not what happened in the specific case Buskey cited in his New York Times op-ed this past November 27th, because the law the he cited as Worrell’s offense was not actually enforced against her in the example he cited in Missouri earlier this year.
Misprision of felony is a felony offense with up to 3 years imprisonment as a penalty, and it is the act of affirmatively helping cover up another’s felonious acts, usually only charged against public officials.
Seeing the story in the New York Times, we had to fact check our previous original coverage at PINAC News because Mr. Buskey mentioned the story in his anecdote and conclusion, saying:
Last month, the Department of Justice provided a rare glimpse of the law’s untapped potential. A Missouri prosecutor pleaded guilty under Section 242 of concealing police officers’ brutal assault of an arrestee, then prosecuting the victim on charges the officers fabricated to cover up their crime.
Missouri marks a promising, yet incomplete mandate. Judges and prosecutors violate civil rights every day, in plain sight, and with seeming impunity. To make them answer for these crimes, the federal government must continue to extend its reach beyond the streets and into the courtroom.
This past week, we obtained via email a US Attorney’s Office of Western Missouri federal prosecutor’s information to fact check the original story, and determine the US Attorney’s exact charges against St. Louis prosecutor Bliss Barber Worrell, as you can see below.
Note that the Eastern Missouri US Attorney wisely recused themselves from Worrell’s case justly avoiding the appearance of any conflict of interest.
A future ACLU article I’d love to read could focus on law enforcement conflicts of interest in the “Internal Affairs” system which allows co-workers to investigate themselves, inevitably resulting in sub-standard results.
When Prosecutors Cover Up, Consequences Can Terrify Victims Crushed by Fist of Justice System
As to the matter Mr. Buckley contended, in fact Mrs. Worrell’s final plea agreement listed four elements of Worrell’s crime, and sure enough it does say that one element was a Title 18, Section 242 felony offense St. Louis police officer Tom Carroll – did commit.
The 42 year-old victim of that police beating was suspected of stealing the officer’s daughter’s debit card, then using it illegally to buy a bus pass.
But the cop took it personally, and delivered cruel punishment to the terrified suspect.
The St. Louis officer dragged an openly “screaming for help” suspect in past of an entire station house, and then the St. Louis officer’s supervisor got involved in dishing out physical abuse too.
The officers’ retribution ended when they chipped the suspect’s tooth shoving the barrel of a gun into his mouth.
Still, that crime by the officer alone wasn’t sufficient to charge the prosecutor for filing a charge, though it was added as an element to be used in sentencing guidelines.
You’d have to read the fourth element of the crime misprision of felony on the next page of the plea agreement to understand that the crux of the prosecuting attorney’s crime was, “an affirmative step to conceal the crime.”
Worrell didn’t plea to a felony just for prosecuting the victim for petty theft, she charged him with Attempted Escape.
She, in fact went out of her way to maliciously prosecute the victim, by using another prosecutor’s name on the filed Attempted Escape charges, since she had to go out of her jurisdiction to cause such charges to be filed.
Only after taking a jog with the officer who told her it was his partner’s first time “taking one for the team” and writing a false police report, and checking the extent of the victim’s injuries the following morning did the prosecutor begin to have a fit of conscience after supervisors began asking questions about the situation.
The second prosecutor involved – who had only been a lawyer for three weeks – was allowed to quietly resign in disgrace.
Sadly, the convicted prosecutor filed the charge of Attempted Escape based on verbal conversation with her friend the St. Louis cop, but the officer didn’t write that fabrication into the police report, since his partner “took one for the team” and presumably wrote his version of the story, omitting any escape attempt.
She covered up a savage beating and used her job to victimize the beaten a second time, resigning days after the incident erupted.
Officer Carroll spent two months on paid administrative with St. Louis Metropolitan PD leave before resigning.
Prosecutors Can Be Subject to Contempt of Court Charges for Official Acts
Another recently used tool to prosecute abuse by a State Attorney in conduct of his job wasn’t mentioned in the ACLU’s article either.
Contempt of Court charges are possible under some specific circumstances which could actually arise in a great many criminal cases.
Anyone can be found in contempt if they defy the orders of a Judge, but for lawyers, this can have more profound consequences.
Prosecutors can also in fact be held criminally liable for their acts by contempt of court, and their constitutional duty to turn over any potentially exculpatory evidence to criminal defendants lies right in the balanced center of the scales of justice.
Poignantly, a Texas Judge was found in contempt of court, and lost his license to practice law in 2013 – and lost a little bit of his freedom, serving five days in jail of 10 days sentenced – after he violated a Court Order to turn over exculpatory evidence.
Former Williamson County Texas Judge and prosecutor Ken Johnson’s failed to comply with a court order to divulge a “Brady disclosure”- so named for a famous Supreme Court Case – withholding key documents pointing to another suspect, so the circumstantially documented case sent an innocent man – Michael Morton – to jail for decades.
Ten days in jail and 500 hours community service by the prosecutor is scant penance to an innocent man who’d rotted in jail for 25 years, after being wrongfully convicted wrongly of killing his wife while prosecutors held exculpatory evidence.
Such is justice to he in the position of ultimate authority when he takes the best years of another’s life after he loses his mate.
Maybe the ACLU can marshal their logistical might to make Brady Disclosure automatic and mandatory in all criminal cases before trial?
It’s already a constitutional right for the accused to review State’s evidence that might lead to acquittal.
Will Chicago Cops or Prosecutors Face Charges for Long Delayed Laquan Mcdonald Charges?
Most people are asking what if any part of our criminal justice system will see reform after the outrageous Chicago officials’ behavior in the Laquan McDonald case.
For instance, there are many questions being asked about Cook County State Attorney Anita Alvarez and the many Chicago police officers might be concerned about being charged under the very same federal crime.
Chicago officer Jason Van Dyke undisputedly shot McDonald, but reports like those by his fellow officers don’t very much resemble the video they spent over a year suppressing.
Chicago officers wrote reports which directly conflict with the dash cam video in Laquan McDonald’s shooting, like this actual excerpt, “Mcdonald raised the knife across his chest and over the shoulder, pointing the knife at Van Dyke. Van Dyke believed Mcdonald was attacking Van Dyke with the knife and attempting to kill Van Dyke.” (page 9-10)
Nobody can say why the prosecutor in Chicago needed a year to act after seeing that video. Ultimately, it takes an insider’s knowledge to prosecute such crimes as an abuse of the inner workings of our criminal justice system.
Only a second whistleblower could build a Laquan Mcdonald case inside the Cook County SAO’s office, if in fact there is documentable wrongdoing.
Unless one of the lawyers in Chicago’s Cook County SAO has a sudden attack of conscience, we may never know why it took until mere hours before the damning video release to charge an officer in the shooting. Almost universally elected on the county level, State’s Attorneys are sometimes held accountable by the ballot box and rarely if ever removed from office with criminal charges. With a general election looming in November 2016, a great many incumbent prosecutors may face electoral challengers next year.
Assistant state attorneys or like Mrs. Worrell once did, wield sizable authority, with limited oversight for a variety of charges – and are rarely charged for their acts in office unless having a fit of conscience after ignoring wrongdoing.
However, we are fortunate that the many members of ACLU do have a conscience, and as well the many lawyers, staffers and paralegals in the organization. I’m certain that Mr. Buckley works tirelessly in his reform efforts with the CJRP group, and I support 100% his efforts, because ACLU legal victories have at some point or another inspired all of us who seek civil rights through justice.
Let me also say, that the American Civil Liberty Union’s help is indispensable defending against discrimination, marshaling legal resources to fight injustice and helping individuals who are deprived of their civil rights. Specifically in Chicago, their legal fight against Illinois unconstitutional wiretapping law was a tremendous success for the ACLU’s civil rights defenders.
We also believe that New York Times didn’t intentionally miss the facts in Mr. Buckley’s story which seeks to educate the public and professionals alike about the perilously thin checks on prosecutors – our legal system’s most powerful positions – and as we wish to inform as well at PINAC News on this most delicate of subjects rarely spoken of or debated.
But yesterday, Cook County prosecutor Anita Alvarez was asked about “cover up” and the journalists asking the questions might’ve read Mr. Buskey’s article, and didn’t know to ask specifically if the state’s lawyer was worried about a federal charge resulting from any steps she might’ve taken to conceal a crime.
That is why we strongly hope the New York Times will do the right thing and run this story to correct the record, and also to educate the same people who read the ACLU’s earlier op-ed.
From those state officials with whom we trust the most authority, We the People all need the highest level of accountability.
Ed. Note: We uploaded a new copy of the Plea Agreement as provided by the US Attorney’s Office this week, and placed that into the original article which was previously embedded from a different location. An earlier version of this story read “Brandon Buskey, the ACLU lawyer who penned the column, which was published November 27, mistakenly reported that Missouri prosecutor Bliss Barber Worrell, whom we wrote about in October, was charged with a felony when she was actually charged with a misdemeanor. Brandon Buskey, the ACLU lawyer who penned the column, which was published November 27, mistakenly reported that Missouri prosecutor Bliss Barber Worrell, whom we wrote about in October, was charged with a felony when she was actually charged with a misdemeanor. The words “cover up” ring off the lips like an epithet, but that’s the essence of the misdemeanor charge misprision of felony to which Worrell pled guilty.” but has been corrected to note that under Federal sentencing guidelines Misprision of Felony is a felony offense itself under Federal sentencing guidelines, 18 U.S. Code § 3559. Special thanks to reader Karl Krautner.