The judge found the “cover-up worse than the crime,” which would seem to lead to the inexorable conclusion that if one had to be punished to be deterred, she would pick the cover-up. And that’s where Louisville, Kentucky Judge Audra Eckerle seemed to be heading.
In a sometimes blistering ruling Tuesday, Jefferson Circuit Court Judge Audra Eckerle accused a prosecutor of intentionally withholding evidence and “secretly” trying to hide his tracks.
In her ruling, Eckerle maintained that the Commonwealth’s Attorney’s office excluded documents from evidence turned over to the defense, “secretly” shelved the subpoena saying how they had obtained the records and prejudiced Sandoval.
And Eckerle said while withholding the documents was bad enough, “the intentional dismantling of evidence and extraction of other documents that would have shown it was hiding other documents is even worse than the concealment of the medical records.”
Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment. The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment. That’s a step too far, and the surest way to seize defeat from the jaws of victory.
But not here, where Judge Eckerle appeared to take that final giant step. And, poof, the prosecutor was gone.
Also this week, the prosecutor involved, Jamhal Woolridge, resigned, though it is unclear if the resignation had anything to do with the allegations of wrongdoing in May.
In a resignation letter on Monday, Woolridge said he was resigning immediately “due to the unforeseen circumstances I have experienced within the last three months.”
Commonwealth’s Attorney Tom Wine said Woolridge “did not elaborate on his resignation. I wished him well.”
Not that he manned up to his deed, or that his boss, Wine, told him not to let the door hit him in his ass on the way out for bringing disgrace on the office, but he was gone.
On its surface, this would seem to be a good thing, ridding the prosecutor’s office of a “bad apple,” as is invariably the claim when someone gets caught doing the dirty. But it didn’t play out that way for Judge Eckerle, who
ruled Tuesday that the behavior of the Jefferson Commonwealth’s Attorney’s office in a felony case she had dismissed for prosecutorial misconduct was “lamentable,” but she gave them the opportunity to bring the case back to court.
But Eckerle ruled that “the cover-up was worse than the crime” and the defendant now had all of the evidence and could still get a fair trial.
Lamentable? You think? But a judge’s harsh word is hardly the equivalent of a hard deterrent to intentional unlawful conduct by a prosecutor. The point, made over and over again, is that prosecutors do wrong, but that there is no ultimate penalty for it. By returning the case to the status quo ante, it provides an incentive to violate the law and see if you can get away with it. What’s the worst that can happen, you are forced to do what you should have done in the first place? Ouch, harsh.
Yet, Judge Eckerle, having already dismissed the case, ordered that the dismissal be “without prejudice,” meaning that the prosecution was free to recharge and start anew. There’s a punishment for you.
And the official rationalization came back to the successful and zealous efforts of the defense. By ferreting out the concealment by Woolridge, the defense lawyer, Rob Eggert screwed himself.
That ruling came, at least in part, because Sandoval’s attorney, Rob Eggert, figured out that the prosecution was withholding evidence and made sure it was turned over before trial, Eckerle wrote.
“The court does not believe that the prosecuting attorney’s action irrevocably tainted the evidence,” Eckerle ruled.
Tainting the evidence? That phrase has no business being included in the rationale. The reason for dismissal with prejudice isn’t because the “evidence is tainted,” or the defense, having found it, now has it and thus isn’t prejudiced any longer by its concealment. The reason is deterrence. The same reason we lock people away forever, to put others on notice that society frowns upon the commission of crimes, and if they commit them, bad things will happen.
The legal system is supposed to frown upon the unlawful conduct of prosecutors too. And that’s why.
But the piece omitted from the judge’s rationalization is that Jamhal Woolridge quit his job as an assistant. The bad prosecutor is out. Is that not enough? Is that not punishment? Has the message not been sent?
It’s not that the prosecution couldn’t cobble together an excuse for what happened. Much as they demand integrity from the defense, they give themselves slightly more latitude.
But prosecutors argue that Eggert never indicated his client would be claiming self-defense and the medical records in question were from an unrelated 2011 incident, more than two years before the current case.
In her ruling this week, Eckerle ruled that the commonwealth doesn’t have the authority to decide which evidence needs to be turned over, and accused the office of playing “cat and mouse” games.
But with this evidence in hand, there remains the constant in all criminal prosecutions “tainted” by prosecutorial wrongdoing: the defendant may still be a bad dude, and nobody wants to let a bad dude walk if they can prevent it.
Now that Woolridge was smacked, and crawled out of the office on his belly, it was back to business in Louisville, making sure the streets were safe and the criminals were prosecuted. No harm, no foul, no dismissal with prejudice. Lamentable, indeed.