Prosecutors, Ex-DOJ Officials Back Convicts at High Court

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By Jordan S. Rubin

Current and former prosecutors—yes, prosecutors—have railed in a pair of U.S. Supreme Court filings against perceived injustices perpetrated by law enforcement and condoned by lower courts.

Their amicus—or friend of the court—briefs lamenting wrongful confessions and withheld evidence read more like the stuff of defense attorneys and like-minded advocacy groups.

But the prosecutors and ex-officials hope their law-and-order credentials increase the chances that the high court will hear the cases of two defendants with similar stories: Brendan Dassey and Corey Williams.

Both were intellectually challenged juveniles who confessed to murders in the face of contradictory evidence. They’ll both die in prison unless the high court intervenes.

Whether the outside help affects the court’s decision to take or reject the cases remains to be seen.

But one of the current prosecutors on the Dassey brief says it’s their duty to fight for justice here.

“The ethical responsibility of a prosecutor is to seek justice for all—the victim, community, and the defendant too,” Carol A. Siemon told Bloomberg Law. She’s head prosecutor for Ingham County in Lansing, Mich.

If the high court grants review, the cases can be heard during the Supreme Court’s next term beginning in October.

Helping a ‘Murderer’

Dassey was a subject of the 2015 hit Netflix documentary series “ Making a Murderer.” It took a critical view of the prosecution of Dassey and his uncle, Steven Avery.

The prosecutors’ filing—signed by more than 60 of them—notes that “millions of Americans watched the video of Dassey’s interrogations in the award-winning documentary,” which prompted “a public outcry over the obvious failure of the system.”

The justices should take Dassey’s case “to restore the public’s confidence in the justice system,” the prosecutors said in their amicus brief, filed March 26 by Lisa Blatt, Anthony Franze, and other lawyers from Arnold & Porter Kaye Scholer LLP. Justice Stephen G. Breyer singled out a brief authored by veteran Supreme Court litigator Blatt during oral arguments in the travel ban litigation April 25.

The prosecutor brief “only underscores the crucial importance of Brendan’s case and the need for the Court to become involved,” one of Dassey’s attorneys, Laura Nirider, told Bloomberg Law. She’s a clinical assistant professor of law and co-director of the Center on Wrongful Convictions of Youth at Northwestern Pritzker School of Law in Chicago.

In their brief, the current and former prosecutors reaffirm the maxim that “a prosecutor’s duty is not that the government ‘shall win a case, but that justice shall be done,’” quoting a famous line from the 1935 Supreme Court case, Berger v. United States.

Brief: Innocents Do Confess

Siemon and her counterparts criticize the deceptive law enforcement techniques used on juveniles like Dassey. They claim those techniques here “led a learning disabled sixteen-year-old to believe that he would be free to return to his sixth period class at school after he confessed to rape, murder, and mutilation of a corpse—a confession starkly at odds with the physical evidence.”

They reject what Dassey’s prosecutor told the jury—that “People who are innocent don’t confess.”

On the contrary, the prosecutors point out, “as every experienced prosecutor knows, sometimes innocent people do confess.” Proof lies “in the numerous DNA and other exonerations of wrongly convicted adolescents who lost their childhoods after courts found their false confessions to be voluntary and reliable,” they said.

Wisconsin officials fighting Dassey’s appeal are due to submit their opposition brief by May 10. They didn’t reply to a request for comment.

A police officer holds a nightstick.
Great Power = Great Responsibility

Forty-four former prosecutors and ex-DOJ officials likewise filed April 5 in support of Williams. Included in that group are George W. Bush’s Attorney General Michael B. Mukasey and Barack Obama’s acting Solicitor General Neal Katyal, who recently argued before the justices against President Trump’s travel ban. Mukasey is with Debevoise & Plimpton LLP in New York and Katyal is with Hogan Lovells in Washington.

Former Solicitor General Seth Waxman—who happens to be Dassey’s lead Supreme Court lawyer—also signed on to the Williams amicus brief. Waxman is with Wilmer Hale in Washington.

When he was implicated in the murder at age 16, Williams “still sucked his thumb, urinated himself on an ordinary basis, and regularly ate dirt and paper,” according to his own Supreme Court petition. “Throughout his childhood, he was hospitalized for extreme lead poisoning” and “institutionalized multiple times,” it said.

Williams was known in his community as a “chump” who “was willing to take the blame for things he did not do,” his petition said.

He’s fighting Louisiana’s failure to disclose witness statements under Brady v. Maryland, the landmark 1963 Supreme Court case that tells prosecutors to turn over evidence favorable to the defense.

Enter the ex-prosecutors and DOJ officials.

“This is a broad coalition of former prosecutors, who understand better than anyone that egregious constitutional violations like those against Corey Williams do a disservice to their profession and undermine the legitimacy of the criminal justice system,” Williams’s lead Supreme Court lawyer Amir H. Ali told Bloomberg Law. He’s Supreme Court and Appellate Counsel at the Roderick and Solange MacArthur Justice Center in Washington.

Louisiana prosecutors’ "overly narrow” view of their Brady obligations led to a “failure to disclose recorded witness statements taken on the night of the murder,” the former prosecutors and officials said in the brief authored by former prosecutor Mary McCord and former DOJ attorney Douglas Letter, now professors and senior litigators at Georgetown Law’s Institute for Constitutional Advocacy and Protection.

Louisiana officials didn’t reply to a request for comment.

They didn’t reply to Williams’s Supreme Court petition, either. But April 16 the justices told them to file a response.

Their opposition brief is due June 15.

When Louisiana officials respond, they can address a chilling contention from their ex-counterparts—that the undisclosed statements could’ve been used to cast doubt on the prosecution’s witnesses, not only by showing inconsistencies, “but also by establishing that Corey (who was later found by the trial court to be ‘mentally retarded') may have been set up by others to take the blame.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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