Closer look: Prosecutor misconduct takes many forms - USATODAY.

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A USA TODAY investigation:

Misconduct at the Justice Department

Closer look: Prosecutor misconduct takes

many forms
Updated 9/23/2010 8:33 AM | Comments 17 | Recommend 4 E-mail | Save | Print |

USA TODAY's investigation found 201

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cases in which federal judges have
cited prosecutors for prosecutorial
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misconduct since 1997.
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The cases came from federal courts in
38 states, Washington, D.C., Puerto
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Rico and the Virgin Islands.
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To see the full list, go to
justice.usatoday.com. Below is a More
sampling of common kinds of
Enlarge By Mark Malijan for USA TODAY Subscribe
misconduct.
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Exonerated: David Sipe, center, teaches a judo move
to Alisha Burt and Jonny Losey in Burlington, Wash.
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As a Border Patrol agent, Sipe was acquitted of using
excessive force after proving that prosecutors had
Many varieties of
withheld evidence about government favors to the
illegal immigrants who testified against him.
prosecutor More

misconduct

Withholding evidence that points to a defendant's innocence, undercuts

government witnesses or must be turned over by law

How often does it happen? USA TODAY identified 86 such cases.

U.S. v. Sipe: Border Patrol agent David Sipe was charged in 2000 with
using excessive force as he attempted to detain an undocumented
immigrant crossing into Texas from Mexico. Three immigrants had ignored
orders to stop and had fled into a field of tall reeds. Sipe used his flashlight
to subdue one who was resisting arrest; the immigrant suffered a head
wound that required five stitches. After Sipe was convicted in 2001, his
defense attorney, Jack Wolfe, discovered that prosecutors failed to tell the
court that the immigrants had been granted Social Security cards, border-
crossing passes and money in exchange for their testimony.
Outcome: The trial judge ordered a new trial, a ruling upheld in 2004 by
the U.S. Court of Appeals for the 5th Circuit. At Sipe's 2007 retrial, the
evidence that the government had extended privileges to the victim was
introduced. A jury acquitted Sipe after two hours of deliberation. He
eventually won back pay from the Border Patrol, on condition that he never
work again for Homeland Security. Sipe has taught martial arts classes and
is seeking a job in law enforcement. "When I went into public service, I
expected honorable behavior would be the norm," Sipe said. "I wasn't
expecting an unfair investigation, an unfair trial."

U.S. v. Rivas: Edgar Rivas, a sailor on a foreign freighter, was charged in

2002 with smuggling cocaine and heroin aboard the ship en route from
Venezuela to New York. Rivas told investigators that the drugs were not
his and belonged to a shipmate who had shared a cabin with him. The
roommate, Genebraldo Pulgar-Sanchez, testified against Rivas, who was
convicted. After the trial, a government translator told defense lawyers that
Pulgar-Sanchez had met with prosecutors the day the trial began and
admitted that he was the one who had brought aboard the parcel
containing drugs.

Outcome: The U.S. Court of Appeals for the 2nd Circuit overturned Rivas'
conviction in 2004, ruling that prosecutors had violated Rivas's
constitutional rights by not revealing the roommate's admission. The court

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Closer look: Prosecutor misconduct takes many forms - USATODAY.com 10/7/10 2:45 AM

said the roommate's statements would have supported the defense's

evidence that Pulgar-Sanchez had trafficked in narcotics before and knew
where the drugs were hidden in the cabin. Rivas had originally been
sentencedto 121 months in federal prison. After the Appeals Court ruling,
the government declined to retry him.

Making improper remarks to the jury

USA TODAY identified 61* cases.

U.S. v. Ayala-Garcia: Cristian Ayala-Garcia and Jos Luis Alicea-Cotto
were convicted in Puerto Rico of drug and weapons charges. The U.S.
Court of Appeals for the 1st Circuit in 2009 granted them a new trial
because the prosecutor made improper remarks to the jury. The
prosecutor attempted to "inflame the jury's passions by depicting the
defendants as dangerous men who needed to be put away for a long time,"
the Appeals Court ruled. The prosecutor said the seizure of 31 rounds of
ammunition for an AK-47 assault rifle amounted to "31 lives saved," which
the Appeals Court said "added fuel to the fire." The court also noted that it
had "repeatedly admonished" the U.S. Attorney's Office in Puerto Rico "for
similar misconduct."
Outcome: Ayala-Garcia was originally sentenced to time served since his
arrest in 2006. When the case was sent back to district court, the charges
against him were dismissed last February. Instead of being retried, Alicea-
Cotto pleaded guilty to one count of the indictment in March as part of an
agreement with prosecutors.
*Prosecutors made statements designed to appeal to jurors' fears or
emotions, rather than to facts, or made other improper remarks.
Source: USA TODAY research

Breaching a plea agreement

USA TODAY identified 17 cases.

U.S. v. Dicus: David Dicus was charged in Iowa after a 2006 search of his
home uncovered four gallon-size bags of marijuana. He agreed to plead
guilty to conspiracy to distribute marijuana and being a felon in possession
of a weapon. In return, the government promised not to ask the court to
lengthen his prison term. At his 2008 sentencing hearing, however, the
federal prosecutor asked the court to sentence Dicus as a career offender
and extend the time he would serve. The district court judge called the
request a "clear violation" of the plea agreement. She sharply criticized the
prosecution's behavior as "beyond blatant. I think it's egregious."
Outcome: Because of the government's "serious and recidivist
prosecutorial misconduct," the judge sentenced Dicus close to the
minimum prison term called for by federal sentencing guidelines: 70
months.

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Posted 9/22/2010 12:22 PM

Updated 9/23/2010 8:33 AM E-mail | Save | Print |

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Closer look: Prosecutor misconduct takes many forms - USATODAY.com 10/7/10 2:45 AM

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Comments: (17) Showing: Newest first New: Most recommended!

jnlwalker (0 friends, send message) wrote: 9/26/2010 9:26:44 PM

DAVID P FOLMAR JR TRYING CASESAS A DA AND NOT HOLDING A LISENSE, AND
WORKING FOR ATTOURNEYS GENERAL OFFICE IN GREENSBORO NC UNDER ANNA
MILLS WAGONER

I DO NOT UNDER STAND HOW A THE ATTOURNEYS GENERAL OFFICE COULD HIRE A
DISTRICK ATTOURNEY THAT DID-NOT HAVE A LISENSE AND HAD NOT HAD ONE
SINCE 2003-2009 AND STILL DON'T HAVE ONE , WHY WASN'T A BACKGROUND
CHECKS DONE ,WHY DIDN'T HE HAVE TO SHOW DOCUMATION DAVID P FOLMAR JR
WORKED FOR ANNA MILLS WAGONER FOR THE MIDDLE DISTRICT OF NORTH
CAROLINA IN GREENSBORO AND HAS TRIED 10000'S OF CASES E=LEGALLY .HE
SHOULD NOT OF EVEN BEEN ABLE TO OPEN UP MAIL OR SEEN PAPER WORK ON
ANY CASE LET ALONE BE A DA THERE ARE 1000'S OF CASES HE TRIED .WHY HAS HE
NOT BEEN TRIED OR CHARGED FOR FRAUD ALL THE LIES HE STOOD UP IN COURT
AND REPSENTED THE FEDERAL GOV- CASE AFTER CASE AND NEVER TOLD ANYONE
ABOUT ALL THE FRAUD AND LIED HE WAS TELLING . AND TO DISCUSS SENTANCES
WITH JUDGES TO GIVE PEOPLE , HE COULD NOT HANDLE HIS OWN AFFAIFS AND
LIFELET ALONE DICTATE WHAT OTHERS SHOULD GET OR RECOMMEND
IF A POLICE OFFICER FROM KERNSVILLE POLICE DEPT, HADN;T CHARGED HIM WITH
A DUI THANKSGIVING 2008 , HE WOULD STILL BE COMMITING FRAUD THE COP
COULD OF SWEPT IT UNDER THE TABLE BECAUSE HE THOUGHT DAVID P FOLMAR
WAS A DA FOR THE ATTOURNEYS OFFICE, THANK GOD THERE ARE STILL SOME
HONEST POLICE OFFICERS DOING THE RIGHT AND HONEST THING HE NEEDS A BIG
THANK-U ALL THESE CASES WERE TRIED E=LEGALLY A ND FRAUDENTLY . HE KNEW
HE DIDN;T HAVE A LISENSE , IF ANNA MILLS WAGONER WAS DOING HER JOB SHE
SHOULD OF KNOWN, A LIE IS A LIE NO MATTER WHO TELLING IT IT'S SAME AS THE
DA FOR DUKE LACROSS THANKES L/WALKER

Recommend 2 | Report Abuse

ObserverDOJAbuse (0 friends, send message) wrote: 9/26/2010 4:22:13 PM

This is an excellent series. Imagine how bad the conduct has to be, how blatant the behavior
and abuse must be for there to be a reversal or to have a reprimand. Notice the Prosecutors
themselves never end up being in trouble. They destroy innocent people's lives for their own
gain. Our soldiers in WWII, Korea, Viet Nam, Desert Storm and now Iraq and Afghanistan did
not die to help egomaniac prosecutors abuse the power vested in them by the people.. .

All citizens should be concerned about this. For example" read these stories, the go look at
the Houston Chronicle archives and you will see stories about fabricated evidence by the
Houston Police to put people in jail on false DNA evidence.

Go to www.ungagged.net and look at the abuse of the DOJ around the Enron case. You will
see a pattern of innocent people being indicted, being turned against others, guilty people like
Fastow and Kropper who were able to get reduced sentences when they did bring innocent
people down.

The DOJ/FBI routinely get witnesses to lie on the stand to save themselves. Plea Bargain is
not valid, it is guilty getting off to point the finger at others. Now it includes having innocent
people lie to get reduced sentences so they lie against other innocent people.

The ones who were innocent but would not lie end up getting convicted and then later end up
pleading guilty because they cannot stand up to a second or third trial. How can the
Government be right 99% of the time? Maybe 50% or 75 % but 99%.

This means you get convicted 99% of the time or plead guilty to something rather than go to
trial or go several times. Who can withstand this pressure? One percent of people charged is
the answer?

Please spread the word. Go to www.ungagged.net and watch the stories, You will not believe
how abusiveness. You will not believe how consistently abusive the DOJ is until you see
these stories.

Then read USA Today stories. It is the same thing over and over again.

Our system is corrupted by greedy, self absorbed, power hungry prosecutors and out of
control power crazed courts.

Spread the word, This is how America will survive. We need to put a stop to this and it starts
with education.

Recommend | Report Abuse

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Closer look: Prosecutor misconduct takes many forms - USATODAY.com 10/7/10 2:45 AM

HarrisonG (0 friends, send message) wrote: 9/23/2010 11:04:05 AM

Very prejudiced article. there is no mention of Defense misconduct that happens far more. No
one gets serious jail time for any FIRST OFFENSE unless it it murder. Most of those convicted
have a print out of arrests and convictions 10 feet long.

Recommend 1 | Report Abuse

rbeda (0 friends, send message) wrote: 9/23/2010 10:16:40 AM

Great article. I am yet another victim of our Dept of Justice whose prosecutors are more
interested in "winning" the conviction then seeing justice served. In my case, the prosecutor
waited until the end of the trial when I was on the stand to tell the jury that he found found
evidence through computer forensics proving that I had the intention of doing the crime. It was
a lie. Who is the jury going to believe; me the defendent or the prosecutor from the Dept of
Justice? Do not expect justice from the Dept of Justice and do not expect service from the
Internal Revenue Service. We live in a great country, but, it is not perfect.

Recommend 2 | Report Abuse

marcivan (0 friends, send message) wrote: 9/23/2010 9:10:59 AM

201 instances in 23 years?! USA Today...how many cases did you review? 201? 2001?
20001? 200001? Granted that I don't want to be one the 201 who were wrongly incarcerated,
but since the system includes fallible human behavior, it doesn't sound like an epidemic to
me.

Recommend 1 | Report Abuse

mjenkins (6 friends, send message) wrote: 9/23/2010 8:34:01 AM

Manolo (0 friends, send message) wrote: 2m ago
I suggest that, in the interest of balancing USAToday's work, the good readers pick up a copy
of Wendy Murphy's book, "And Justice for Some: An Expose of the Lawyers and Judges Who
Let Dangerous Criminals Go Free."

-------------------------------------------

Very good counter point. I suspect at least some of the poor innocent defendants included in
the 201 cases were actually guitly and the prosecutors knew it and the prosecuters were just
trying to get justice for the real victims. The cases mentioned were probably cherry picked to
be ones that were very simpathetic or were actual cases of misconduct.

maj

Recommend 1 | Report Abuse

Manolo (0 friends, send message) wrote: 9/23/2010 8:29:43 AM

h_nicole_young (59 friends, send message) wrote: 3h 11m ago
Well, the problem here seems to be the idea of making drugs illegal in the first place. It's not
quite the same as the 55 mph speed limit, but the results are the same -- if everybody is guilty
from the onset (in the case of the 55 mph speed limit) or if everybody can easily be *made* to
be guilty with a few lying witnesses (in the case of illegal drugs), it's pretty easy and
convenient for the government to pick and choose anybody it wants to be "guilty" for any
number of political reasons. That's a dangerous precedent indeed.

The government can probably take a lesson or two by reading a few parenting books, actually.
Any observant parent quickly learns that too many rules eventually leads to what is in effect
no rules since the child is a criminal practically from the minute he/she gets out of bed and
eventually doesn't even bother any more. So be it. I am still confident that gender balance will
make it all better in the long run and that things can only get better as we get closer and
closer to achieving gender balance at all levels of government and industry. Onward...

++++
So you think "good parenting" is permtting children to use drugs?

Recommend | Report Abuse

mjenkins (6 friends, send message) wrote: 9/23/2010 8:28:25 AM

if everybody is guilty from the onset (in the case of the 55 mph speed limit)

--------------------------------------

Your analogy falls apart because of an invalid assumption. Not everyone exceeds the 55 mile
per hour speed limit and you know it almost as well as I do. I know it because I am one that
doesn't, you know it because you have certainly come up behind someone and got stuck
because there was no room to pass.

maj

Recommend | Report Abuse

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Closer look: Prosecutor misconduct takes many forms - USATODAY.com 10/7/10 2:45 AM

Manolo (0 friends, send message) wrote: 9/23/2010 8:26:08 AM

I suggest that, in the interest of balancing USAToday's work, the good readers pick up a copy
of Wendy Murphy's book, "And Justice for Some: An Expose of the Lawyers and Judges Who
Let Dangerous Criminals Go Free."

I guarantee that after reading this book that you will realize that the only way to prevent
yourself from being victimized once by the criminals, twice by the courts and a third time by
the penal system is to take matters into your own hands.

Recommend | Report Abuse

More comments on this story: 1 2 Next

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