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A recent Court of Appeals decision out of North Carolina reveals a stunning tale of prosecutorial manipulation and misconduct in Wake County. While pursuing robbery charges against two defendants for holding up a club promoter, the lead prosecutor in the case, Assistant District Attorney Colleen Janssen, not only failed to turn over evidence critical to the defense’s case and to correct a key witness’s misleading testimony, but also interfered with an ongoing police investigation in order to ensure that her star witness wasn’t arrested for being a drug dealer. The core of the defendants’ argument at trial was that they did not commit a robbery, but were in fact victims in a drug deal gone wrong. Janssen denigrated this argument to the jury even as she used a private email account to encourage local police to wait until after the trial to arrest her witness on trafficking charges. After the trial, the Court of Appeals vindicated the defendants’ allegations of prosecutorial misconduct and granted Barshiri Sandy and Henry Surpris a new trial on June 21, 2016 in a clear-throated and forthright opinion.

At trial, the State put forth a fairly unremarkable theory of the case. It argued that the defendants robbed the victim—the star witness—in the manner of a traditional armed robbery.

The State’s evidence tended to show as follows: Defendants entered Mr. Smith’s garage with the intent to rob Mr. Smith. Mr. Smith testified that he was a “club promoter,” a position that required him to carry cash which accounted for the large amount of money he carried from time to time. He testified that Defendants approached him in his garage wearing masks and robbed him of $1,153.00 and some jewelry. He stated that he was able to shoot Defendants during the robbery, but was struck once in the arm by a bullet fired by one of the Defendants. Mr. Smith denied being a drug dealer.

The defense argued that this was not a robbery, but a drug-related confrontation gone wrong.

Defendants’ evidence tended to show as follows: Defendants testified that Mr. Smith was, in fact, an active drug dealer. Defendants went to see Mr. Smith, not to rob him, but rather to confront him about marijuana they claimed they had purchased from him but had not yet received. Mr. Smith admitted to owing Defendants marijuana. Mr. Smith stated that he did not want to conduct business inside his residence (as his family was inside), but that he would give them $1,153.00 in cash and a ring in lieu of the marijuana owed to Defendants. After handing over the money and ring, Mr. Smith grabbed a gun and shot both Defendants. Defendants fled in a vehicle driven by Mr. Baldwin. Defendants presented no evidence that Mr. Smith was, in fact, a major marijuana dealer besides their own self-serving testimony.

One might think that the defense presented no additional proof that Mr. Smith was a drug dealer because they simply concocted their story. Indeed, this is the exact argument that ADA Janssen made in her closing argument.

There has been absolutely no evidence from the witness stand outside the Defendants’ testimony that this has anything to do with drugs…. The Defendants are the only people who’ve been talking about drugs…. From that, the defense wants to make you believe that Marcus Smith is apparently a drug kingpin.

Considering the jury convicted Sandy and Surpris, it seems like Janssen’s argument was a powerful one. Nevertheless, one actor in the trial possessed intimate knowledge about Mr. Smith’s involvement in drug-dealing and failed to supply that information to the men who needed it: prosecutor Colleen Janssen.

After the defendants were convicted, their attorneys learned that Mr. Smith was indicted by the federal government for trafficking large amounts of marijuana.

Through information obtained during the federal prosecution of Mr. Smith, Defendants’ counsel has learned of information which suggests that prior to Defendants’ trial: (1) The lead assistant district attorney (the “ADA”) in Defendants’ case was fully aware of the R[aleigh] P[olice] D[epartment] investigation of Mr. Smith’s drug trafficking activities; (2) the ADA corresponded with the lead RPD detective through a private e-mail account she maintained regarding the RPD’s active investigation of Mr. Smith’s involvement in drug trafficking; (3) when the RPD detective had cause to arrest Mr. Smith for drug trafficking, the ADA encouraged the RPD detective to hold off on the arrest until after she had completed her prosecution of Defendants; and (4) during Defendants’ trial, the ADA called Mr. Smith as her key witness, who testified that he was not a drug trafficker, testimony which the ADA knew or should have known was false.

According to the Court, the State did not challenge the veracity of the information the defendants gathered after trial. And, that information revealed that Janssen used a private email account to communicate with a detective who was planning to bust the victim and central witness in her case. The defense’s entire theory at trial was that Mr. Smith was involved in dealing drugs. Yet, Janssen concealed her emails and the exculpatory impeachment information they contained. And, Janssen allowed Smith to testify at the defendants’ trial that he was not involved in drug-dealing. In fact, Janssen had specifically requested on more than one occasion that the detective hold off on raiding Smith’s stash house so that he could testify (more effectively) at trial.

The prosecutor’s actions were clearly troubling. The very fact that Janssen used a private email account to conduct this communication is telling. What’s more, Janssen’s failure to let the defense attorneys know what she had learned from the RPD was an out-and-out Brady violation. Then, her decision to allow a State witness to fundamentally mislead the jury was a classic Napue violation.

The Court’s opinion does not dither. It does not water down the misconduct or try to find other grounds on which to keep the convictions intact. Instead, it provides a clear and intellectually honest assessment of what occurred and why it was so problematic.

Defendants’ version of events on the night in question was built on the premise that the alleged victim, Mr. Smith, was in fact a drug dealer. The ADA’s e-mails cited above conclusively establish that the ADA knew or had reason to know of information which would have been helpful to Defendants and failed to disclose it. We see no need to remand the matter to the trial court for the taking of additional evidence on this point. Again, the e-mails speak for themselves.

The only misstep in the Court’s ruling is that it fails to disclose the identity of the prosecutor responsible for the misconduct. As one media outlet appropriately pointed out, rather than naming names, it simply refers to Janssen as “the ADA.”

The head of Janssen’s office appears to be thoughtfully considering the ruling’s implications: “Wake County District Attorney Lorrin Freeman placed Janssen on paid leave this week as she reviews the case and decides whether to retry the men.” While Freeman’s comments reveal a self-protective instinct, they also indicate a willingness to acknowledge the importance of public trust: “We have to all exercise our judgment and discretion every day. I’m not convinced this was a nefarious or an ill intent. Sometimes that doesn’t matter, though, and what matters is, can the confidence be restored in what we are doing internally as we move forward?” The answer to that question will turn on how Freeman handles what seems to be an open-and-shut case of misconduct. Given the very real possibility that Freeman will fail to appropriately discipline Janssen, the question will then be whether the state bar will take action. At the very least, Sandy and Surpris can move towards a resolution of their case; hopefully, a fair trial in which their due process rights are respected.

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