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Recently at The Open File we’ve been following developments at the Jefferson County Commonwealth’s Attorney Office in Louisville.  Notably, the alleged misdeeds of prosecutor Tom Van De Rostyne.  In April, a judge declared a mistrial in the murder case against Dejuan Hammond when it was discovered Van De Rostyne had failed to turn over a witness statement containing a possible alibi for Hammond.  Van De Rostyne was later fired and all his previous cases were placed under review.  Then came allegations last month that before leaving the office, Van De Rostyne had engaged in the vindictive over-prosecution of the very witness whose statement he had not disclosed in the murder case, attempting to intimidate her into testifying.

Given his dismissal from the office and subsequent investigation by Commonwealth’s Attorney Tom Wine, one might be tempted to slot these episodes into the bad-apple theory of prosecutorial misconduct, in which otherwise law-abiding District Attorneys offices have their reputations sullied by lone miscreants.  Here or there, a prosecutor is reprimanded or at worst dismissed, what little press there is moves on, and the status quo is preserved.

But due to the diligent reporting of Jason Riley at WDRB.com we are beginning to get a much fuller picture of what’s going on in Jefferson County, and it isn’t kind to the bad-apple theory.

In the Hammond case alone, there have been multiple allegations of evidence being withheld from the defense since Van De Rostyne was fired.  Following the mistrial, the judge in that case, Judge Angela Bisig, instructed the new prosecutors, James Lesousky and Elizabeth Jones Brown, “to turn over every piece of evidence in their possession”.  But apparently that never happened.  Instead, as WDRB.com reports the defense recently produced forty-four pages of undisclosed evidence that included a mug shot of a man whose fingerprints were found near the scene of the murder.

Judge Bisig, still reluctant to dismiss the case, allowed it to proceed to trial for the third time.  But on the first day of proceedings, Ted Shouse, Hammond’s attorney, objected vociferously to the prosecutions failure to disclose the existence of a jailhouse informant against Hammond, whom they had known about for four months.  Prosecutors claimed they had no intention of calling him as a witness and therefore didn’t need to disclose, despite the fact that he was on the subpoena list, and they had arranged to have him to be brought to the courthouse.  A compelling video of the ensuing bench conference can be seen here, courtesy of the Courier-Journal. Once again, the trial was delayed.

But as Riley of WDRB.com reports in his very useful summation of the situation in Tom Wine’s office, the alleged misconduct in the Hammond case is merely the instance that has garnered the most local attention, and by no means the totality of the problem.  Take, for instance, Jefferson County prosecutor Shameka O’Neil, who last year resigned after falsely assuring a judge that no recording of a 911 call existed to be turned over to defense counsel in a stolen property case.  She had spoken personally to the Louisville Metro police, she told the court, to confirm the lack of a recording.  The problem being that, in fact, she had not spoken to the police, and there was a 911 call.  Jefferson County Circuit Court Judge Barry Willett dismissed the case, citing O’Neil’s “outrageous conduct.”

Then, earlier this year, as the Hammond case limped along, another murder trial, that of Guy White, was delayed and the case nearly dismissed owing to prosecutorial conduct apparently so offensive to Judge Mitch Perry that he said he would have punished the prosecutor Bill Burt had he, too, not resigned.

It is usually around this point in accounts such as these that the bad-apple theory multiplies itself, and becomes the theory of bad-apples, which has its own standard remedy: admit that more controls are necessary, as Commonwealth Attorney Tom Wine has duly done, assure the public that prosecutors’ cases are being reviewed, and carry on.  Unlike many other prosecutors’ offices, we can at least say of Jefferson County that it seems to expel its worst offenders at a steady clip.

But then what to make of Riley’s next discovery, that of Assistant Commonwealth’s Attorney Alicia Gomez’s apparently intentional witness tampering?  In a sex abuse trial last month, Gomez spoke privately to a defense witness, “telling him not to mention certain topics while on the stand,” and informing him that the defendant planned on suing him.  Judge Bisig, having not apparently seen it all with Hammond case, said she’d never encountered such a thing, and averred that she would have declared a mistrial had the defense requested one.  She did go so far as to let the defense put Gomez on the stand to explain herself.  The jury, perhaps unsurprisingly, acquitted.

What is most telling in this sad litany, however, isn’t such apparently frequent disregard for the rule of law in Jefferson County.  It is the response of Commonwealth Attorney Tom Wine to the situation once the bad apples theory no longer passes the smell test.  Of his staff prosecutor Gomez, and her alleged biasing of a witness, he observes, “She learned a lesson from that.”  He has, he told Riley in an interview, “used the incident as an example for the rest of the office on what can be said to witnesses before they testify.”  As to the Hammond case, he points out that, despite three failed trials, a fired prosecutor, and a growing list of undisclosed evidence, Judge Bisig has still not made a formal finding of prosecutorial misconduct.  “If you are going to hold us to be perfect, we’re not going to make it,” he told Riley.  “I will concede that.  We are not perfect.  But we are not unethical.”

The trouble being that the constitutional rights of defendants to fair trials isn’t a matter of batting averages.  The accused cannot use their incarceration as a “lesson” to share with their office.  They must do time, and sometimes they must die.  Until this underlying ethic of toleration for prosecutorial rule-breaking meets with more serious sanction, we will be left with morality tales about individual prosecutors, which often do as much to disguise the problem as they do to expose it.

In November, Jefferson County will try prosecuting Hammond for the fourth time.  Meanwhile, Tom Van De Rostyne has moved up into the Kentucky Attorney General’s Office.

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