Revelations that yet another criminal conviction out of New Orleans was attained through the illegal (and potentially criminal) conduct of an Orleans Parish prosecutor makes you wonder whether any of the cases won under former District Attorney Harry Connick, Sr. were prosecuted fairly.
An independent inquiry of the Orleans Parish District Attorney’s office’s practices under Connick (who was District Attorney from 1978 to 2003) must be undertaken if the office wants to overcome its toxic record of misconduct.
Milton Isaac’s case is the latest in a plethora of cases that have disintegrated under the scrutiny of appellate review in recent years following the exposure of misconduct on the part of the state. That misconduct has included secretly providing witnesses incentives and benefits for their testimony, eliciting testimony from witnesses that prosecutors know to be false, threatening witnesses and victims with criminal charges if they do not provide favorable testimony, and hiding forensic and physical evidence, police reports, impeachment evidence and witness statements from courts and defense counsel.
In Isaac’s case, a prosecutor named Glynn Alexander coerced two key witnesses to provide testimony that he knew to be false by threatening one witness and his family with criminal prosecution, and by making false promises and offering financial incentives to the other. Of course, he did not disclose any of this to Isaac’s lawyer.
Alexander’s conduct was nothing short of outrageous: the testimony he extracted went to the heart of the case against Isaac – without this false testimony, he had no way of proving the charges against the defendant. He concocted Isaac’s intent to distribute heroin, which resulted in a life sentence, whole cloth. Indeed, the federal judge who threw out Isaac’s conviction characterized Alexander’s conduct as “subornation of perjury” – potentially a criminal offense in Louisiana, since perjury is a criminal offense, and counseling somebody to commit a criminal offense is itself a criminal act. (See LA Rev Stat § 14:123 and LA Rev Stat § 14:24).
This is the information about Alexander’s conduct from the opinion that overturned Isaac’s conviction:a) The November 28th, 2000 affidavit and the March 26, 2008 testimonial recantation of Carolyn Harris: In her affidavit, Harris, Isaac’s former girlfriend who testified for the State at trial, reported that she had initially told the prosecutor that Isaac had obtained money from Terrell Sterling, a friend, so that Isaac might obtain drugs from Edgar Barbarino in order to alleviate his own drug withdrawal symptoms. Rec. Doc. 3, Exh. 1.5 Harris stated that the prosecutor, Glynn Alexander, coerced her into stating at trial, however, that the drugs obtained by Isaac were purchased for him to distribute to Sterling because Sterling was experiencing drug withdrawal. Id. Harris, therefore, indicated that her testimony at Isaac’s trial was false; that she testified falsely because she was assured by the prosecutor that Isaac would only get ten years of jail time; and that she was also assured she would be granted immunity from prosecution. Id. At the evidentiary hearing in state court, Harris also claimed that the prosecutor had assisted her with her expenses and housing at trial and helped her acquire Section 8 subsidized housing after trial.6 Isaac argues that Harris’ false testimony was critical to establish his intent to distribute… b) The July 30, 2007 affidavit and the August 29, 2007 testimonial recantation of Edgar Barabino: On July 30, 2007, Edgar Barabino signed an affidavit that claimed that Isaac had tried to steal heroin from Barabino for his own addiction and not to give, sell or otherwise distribute the drugs to anyone else. Rec. Doc. 3 at 87, Exh. 3. Barabino reported that the Assistant District Attorney assigned to the case, Alexander, threatened to bring drug charges against Barabino or members of his family if he refused to testify falsely at trial. Id. At a state evidentiary hearing held on August 29, 2007, Barabino testified that, on the date of the crime, Milton Isaac came to him and asked to buy some heroin from him that was supplied to Barabino by a dealer both he and Milton had frequented in the past. Id. at 101. When Barabino refused to sell the heroin to him, Isaac produced a gun and attempted to take the heroin from him. Id. Barabino repeated, at the hearing, the claim that the State had coerced his “false testimony” at trial by telling him that he and his family would be charged with possession with intent to distribute heroin if he did not cooperate. Id. at 98. At trial, Barabino had testified, as a rebuttal witness for the State, that Isaac had robbed him only of $61.00 and that he (Barabino) did not have any drugs on him or in his house.7 This testimony, Isaac argues, suggested to the jury that Isaac was a drug dealer and the drugs seized from Isaac were in his possession before his altercation with Barabino. Rec. Doc. 3 at 23.
In 2011, the U.S. Supreme Court suggested in a sharply divided 5-4 decision in Connick v. Thompson that the Orleans Parish District Attorney could not be held accountable for the wayward conduct of a “rogue prosecutor”. How many rogue prosecutors does a corrupt office make? The Isaac case is not an isolated incident; indeed, it is the sort of case we have come to expect from the Orleans Parish District Attorney’s office. This alone indicates that there is a need for systemic reform.
The Department of Justice should conduct an inquiry into all the convictions from Harry Connick, Sr.’s era that have been overturned on account of prosecutorial misconduct to see whether criminal charges should be laid against any prosecutors for civil rights violations. The DOJ is already monitoring the New Orleans Police Department’s compliance with a consent decree after the NOPD was found to have conducted itself in a thoroughly unprofessional manner for decades. The conduct of former prosecutors like Glynn Alexander demonstrates that it is not just the police who have a history of using unethical and illegal means to secure convictions in New Orleans. And yet, unlike the police, these prosecutors have never been called to account.
What’s more, recent cases like that of Michael Anderson and Jamal Tucker do not offer hope that the current District Attorney of Orleans Parish, Leon Cannizzaro (who was trained under Harry Connick, Sr.) is taking the necessary steps to get his office back on track. Moreover, his stubborn defense of his predecessor’s conduct in the Juan Smith case and others like it suggest he’s resistant to righting the wrongs of the past.
The situation cannot continue to go on this way, with prosecutorial misconduct lying buried unless a federal court happens to bring it to light. The DOJ needs to take action to ensure the fairness and integrity of the Orleans District Attorney’s office until the public has reason to trust it again.