It is difficult to let too many months pass without wading into the cesspool of prosecutorial misconduct that District Attorney Douglas Valeska cultivated for some 30 years. In the 20th Judicial Circuit of Alabama (covering Houston and Henry counties), Valeska’s 2016 departure from office did not remove the stench of misconduct; as we explained in a previous post, claims related to the former DA’s discrimination and misconduct will arise for years to come in the office’s cases. A recent decision by the federal U.S. Court of Appeals for the Eleventh Circuit underscores this reality. In Hammonds v. Commissioner, the court used extremely harsh language to describe both Valeska’s behavior and the office’s implausible defense of that behavior. It went further, sending a copy of its opinion to the state bar for potential disciplinary proceedings. But, unfortunately, as courts so often do, it affirmed the conviction and sentence, making the prospect of meaningful prosecutorial accountability disappear like tears in a rainstorm.
Artez Hammonds’s case is not just another run-of-the-mill felony conviction; he faces execution. Remarkably, this is not a case where the defense attorney at trial failed to object to the prosecutor’s misconduct, leaving a thorny and complicated legal claim in the trial’s wake. Instead, the defense attorney was on top of Valeska’s transgressions at every turn. Even the Eleventh Circuit’s opinion rejecting the defendant’s claim cannot avoid a tone of inevitability when describing the DA’s actions:
Hammonds invoked his Fifth Amendment right against self-incrimination and elected not to testify. Doug Valeska led the State’s prosecution. Although it is black-letter law that a prosecutor may not comment on a defendant’s decision not to testify, Griffin, 380 U.S. at 615, Hammonds thought it necessary to ask the court in a pre-trial motion in limine to preclude Valeska from making any such remarks, given Valeska’s track record. See, e.g., Jackson v. State, 414 So. 2d 1014, 1021-22 (Ala. Crim. App. 1982) (quoting from the record Valeska’s improper closing argument about defendant’s failure to testify); McNair v. State, 653 So. 2d 320, 333-34, 336-38 (Ala. Crim. App. 1992) (disapproving of numerous inappropriate remarks Valeska made about the victim). The trial court granted Hammonds’s motion over the State’s objection and ordered Valeska not to refer to Hammonds’s decision not to testify during the trial.
But neither the Constitution nor a direct order from the court inhibited Valeska from improperly referring to Hammonds’s decision not to testify.
In other words, the defense attorney—citing authority from the Alabama Court of Criminal Appeals—put everyone on notice that Valeska was a walking Fifth Amendment violation, and the trial court agreed to help keep him in check. Then, the moment Valeska objected to a defense question of another witness and said “[l]et him testify”—referring to the defendant—the defense lawyer requested a mistrial. The trial court denied the request and instead gave a curative instruction to the jurors. (While the preceding error is the key one, it is worth noting that in closing arguments, Valeska told the jury that Mr. Hammonds “couldn’t keep [his] stories straight in prison,” making an impermissible reference to the defendant’s imprisonment. Again, the defense attorney objected and requested a mistrial. Again, the trial court denied the request and read a vanilla curative instruction.)
After trial, the jury convicted Mr. Hammonds and sentenced him to death. On appeal, the Alabama Supreme Court said that Valeska’s conduct “almost persuaded” it to reverse, but it backed down, deferring to the curative instructions. Relief was also denied in the state courts in post-conviction proceedings and by the federal district court that reviewed the habeas petition.
Although it ultimately denied relief, the Eleventh Circuit’s decision deserves credit for being clear and straightforward. Rarely do prosecutors get public reprimands like this one:
Hammonds argues that the prosecutor’s first statement, which referred to his decision not to testify, violated his Fifth Amendment right against self-incrimination. He’s right. . . .
Valeska’s “Let him testify” remark plainly violated Hammonds’s Fifth and Fourteenth Amendment right against self-incrimination and therefore constituted Griffin error. Indeed, even Valeska admitted to the trial judge that he intended his remark to refer to Hammonds’s refusal to testify—this after the judge had expressly instructed Valeska not to comment on Hammonds’s exercise of his Fifth Amendment right.
We are very disturbed by Valeska’s behavior. Not only did Valeska intentionally refer to Hammonds’s decision not to testify, but he did so in flagrant violation of the court’s pre-trial order—an order that should not have even been necessary in the first place, since it is a basic tenet of constitutional law that the government may not use against the defendant his decision not to testify. And the instruction really should not have been necessary in Hammonds’s case, since Valeska had been reprimanded in prior cases for engaging in precisely the same unconstitutional and unethical behavior.
We are further deeply disappointed that throughout this appeal, the State has perpetuated the charade that Valeska did not intend to refer to Hammonds’s decision not to testify. In its brief, the State characterized Valeska’s “Let him testify” statement as “a few stray words” and an “offhand comment.” And at oral argument, the State repeatedly downplayed the statement as an “offhand remark.” But, as we have recounted, Valeska’s history and his own words at Hammonds’s trial betray the State’s white-washing of its prosecutor’s actions. Yet the State continues to act as if Valeska, an experienced prosecutor, inadvertently violated one of the most basic tenets of criminal trial law. And it does so, even though the Alabama Supreme Court itself expressed disapproval of Valeska’s blatant disregard of his ethical responsibilities as a prosecutor. See Hammonds II, 777 So. 2d at 778. The State’s insistence on defending this improper conduct implicitly condones the unethical tactics that Valeska used, and it invites the State’s current crop of prosecutors to likewise engage in such unsavory conduct.
This is eye-popping language from a court that has at times done damage to jurisprudence designed to protect criminal defendants from State cheating. The court faulted not just Valeska, but also the prosecutors who have come after him and “perpetuated the charade” that the DA did not intend to do precisely what he said he intended to do. The current District Attorney, Patrick Jones III, should be reading this opinion carefully if he is taking his ethical obligations seriously. The court did not leave the tongue-lashing at that, however. Acknowledging that it was not taking the step of reversing Mr. Hammonds’s conviction, the Eleventh Circuit wrote that, “[w]e can  provide the Alabama State Bar with a copy of our opinion for consideration of Valeska’s conduct, and we will do so.”
This may seem like an accountability feel-good story; after all, the notorious DA responsible for substantial misconduct has finally been called out by the judiciary. The problem? He is no longer in office. Valeska left his role as DA in 2016. A punishment from the state bar would have no impact on his three-decade long career as a prosecutor. He already had a retirement party, and the “laughter and tears” at that event will not be taken back. Based on the state bar association’s website, it is unclear if he is even actively practicing anymore. What needed to happen—and what did not happen—was serious professional discipline in the mid-1990s or even earlier when courts began seeing his misconduct in case after case. That sort of action could have changed the course of history. Instead, we now just find sporadic judicial opinions that call him out; these amount to ‘too little, too late’ for the victims of his misconduct.
From a practical perspective, the Eleventh Circuit’s post-retirement slap-on-the-wrist of Valeska seems more like a no-stakes self-congratulatory ode to accountability. Perhaps the court’s judges will point to this opinion the next time someone gripes that they have created extra-constitutional rules to let prosecutors off the hook for suborning perjury. Or use it as a psychological buffer when legal experts question the extraordinarily narrow approach the court often takes when it comes to issues of prosecutorial accountability. More hopefully, this opinion represents a new direction for the Eleventh Circuit, one in which it takes prosecutorial misconduct seriously. We need more than an ode, even if it is an awfully good ode.