Sunday, November 22, 2009


Dateline November 10, 2009


Prosecutors Like Tampa’s Mark Ober Labeled “Overzealous and Dishonest”

Did you know that under Florida law, a state attorney (prosecutor) can use a false witness at trial, can coach that witness to commit perjury, to fabricate false testimony, to withhold evidence favorable to the defense, and be immune from penalties or lawsuits? Anything a corrupt, overzealous, and dishonest prosecutor does at trial is protected by law, except perhaps, punching out the judge. Framing an innocent person for murder is okay.

According to a November 5, 2009, article by Joan Biskupic in “USA Today,” titled, “High Court Weighs Lawsuit Against Prosecutors,” twenty-seven states and the U.S. Justice Department “…are trying to shield prosecutors from claims for damages tracing to any trial testimony.”

The article goes on to say that the Supreme Court justices struggled with whether prosecutors can be held responsible for framing defendants with false testimony and fabricated evidence.

Two men in Iowa were convicted for a 1977 shotgun murder and went to prison. Twenty years later, one of the men’s friends obtained the police report, discovering that the two prosecutors, Joseph Hrvol and David Richter, had coached the key witness and withheld evidence about a leading suspect. The Iowa Supreme Court threw out their conviction, and the freed men brought suit against the crooked prosecutors under federal civil rights law, known as a “1983 suit.”

I think I may be in love with new justice Sonia Sotomayor after what she told a lawyer defending the Iowa prosecutors. Let me quote:

“When Katyal said prosecutors would ‘flinch’ from their duties, Justice Sonia Sotomayor suggested a prosecutor should flinch ‘…when he suspects evidence is perjured or fabricated.’ Sotomayor, a former prosecutor who seemed more sympathetic to McGhee and Harrington [the men wrongfully convicted], elicited from Katyal that the Iowa prosecutors were never sanctioned.”

“Justice Anthony Kennedy responded heatedly to arguments by the Iowa prosecutors’ lawyer, Stephen Sanders, that they cannot be liable for any fabrication that ends up being used at trial.”

“So the law is the more deeply you’re involved in the wrong, the more likely you are to be immune?” Kennedy said. “That’s a strange proposition.”

The deputy solicitor general, Katyal, said that the court should focus on the “overriding goals of the justice system,” which, to hear him tell it, should protect prosecutors, no matter how egregious their actions. Funny, I thought that the overriding goal of the justice system was “the truth.” It seems to me that such dishonest actions by “officers of the court” should be prosecuted as “obstruction of justice.”

Concerning “sanctions for failure to disclose,” according to Florida law (Hunter v. State, (Fla.2008), 2008-WL4348485, Fla.Law Wkly 5721), “Remedy of retrial for the state’s suppression of evidence favorable to the defendant is available when the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Nowhere does it mention the offending prosecutor should receive so much as a slap on the wrist. How about this one?

“If false testimony surfaces during a trial and the government has knowledge of it, the government has a duty to step forward and disclose.” (Ventura v. Attorney General, Florida (C.A.II, Fla.2005) 419 F.3d 1269) (Federal Appeals Court).

“Government has a duty not to present or use false testimony.” (Brown v. Wainwright, 785 F.2d 1457, (CA II Fla. 1986). (This was the Barksdale murder case out of Tampa, Hillsborough State Attorney’s office—sound familiar?)

“Deliberate deception of a court and jurors by presentation of known false evidence is incompatible with the rudimentary demands of justice.” (Criminal Law 110 K 2033).

What we are talking about here is a case of “manifest injustice.”

If a wrongfully prosecuted and convicted person can somehow discover the wrongdoing, and can comply with restrictive appeal rules, he may have a slim chance at a retrial, but the offending prosecutor gets away with his crimes.

I know this from personal experience. False testimony, perjury, coached witnesses, withheld evidence, immunity from prosecution for the guilty, and more are all present in my case. Go to the web site,, and read the case facts. The fight for justice is exceedingly difficult.

There is one exception to the “absolute immunity” of prosecutors. Although everything they do at trial in their own jurisdictions is protected. Once they step out of their counties and insert themselves into other jurisdictions, other matters, they lose all their immunities and protections. When Mark Ober leaves his Tampa sanctuary and travels to Tallahassee, making false statements before a state agency hearing such as the parole commission, under the law he is just another witness, subject to legal remedies if he oversteps the law. Hopefully, Justice Sonia Sotomayor will be watching.



Vox Populi said...

good article, charlie. Slowly but surely we're going to set things straight. We're working hard out here while they murder good people left and right. You're stuck in there and fighting the good fight. Keep strong.

Anonymous said...

We need to know why innocent people are sent to prison
In Print: Sunday, December 13, 2009

It took 35 years for the criminal justice system to face the fact that it had wronged James Bain, a man convicted of the heinous crime of raping a 9-year-old boy in Lake Wales and sentenced to a lifetime behind bars. For nearly a decade Bain was denied requests for a DNA test on the evidence. It took a state attorney finally agreeing this year for the test to be done. The results ruled Bain out as the perpetrator.

Bain joins at least 11 other Floridians who were convicted of crimes and imprisoned only to be later found factually innocent of the offense in recent years.

Anonymous said...

The revolution in DNA testing makes it possible to identify these miscarriages of justice with absolute certainty, but it doesn't say anything about how these errors occurred. Florida needs a commission to study these cases, breaking them down to see the system's flaws, just like the National Transportation Safety Board analyzes every plane crash.

On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims' advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.

Bain was convicted largely on the strength of the victim's eyewitness testimony. That sort of account by eyewitnesses has incredible power to sway juries even though it is notoriously faulty. Bain's blood type didn't match the semen found on the victim's underpants. He also had an alibi: Bain and his sister had been at home watching television when the crime occurred. But a jury convicted him anyway. Bain was 19 years old at the time and had no prior criminal record.

An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain's, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide. (The Innocence Project works to find and free innocent people imprisoned in Florida. An actual innocence commission would look at established cases of wrongful conviction to determine what went wrong within the criminal justice system.)

The timing of a commission is important. Florida needs to know why it sends innocent people to prison, whether through individual errors or systemic problems. With DNA testing leading to exonerations of the wrongly convicted with increasing frequency, this is an ideal moment for public acceptance of a commission and its findings.

Once these old cases of injustice proved through DNA testing are exhausted there won't be another opportunity to demonstrate actual innocence with the same level of certainty. But there are still plenty of crimes such as embezzlement, where wrongful convictions occur but DNA is typically not part of the proof. In order to prevent these kinds of injustices, the nuts and bolts of the criminal justice system need reform.

Talbot "Sandy" D'Alemberte, former Florida State University president and a former ABA president, is behind the push for a commission. He points out that the state high court has regularly investigated administration of justice issues. Earlier efforts include commissions looking into racial bias in Florida courts, the impact of cameras in state courts and whether attorneys should be required to report their pro bono hours. An innocence commission falls within the court's scope of duties, and its establishment was one of the lead recommendations of a 2006 report from the ABA Florida Death Penalty Assessment Team. It's time to get started.

When an innocent person goes to prison it is a tragedy for society as well as for the wrongfully convicted and his family. His life is ruined, taxpayers pay for his upkeep and the real criminal is still at large. Florida needs to know how and why these mistakes happen so another innocent person doesn't spend most of his adult life behind bars.

Anonymous said...

Pasco County has been doing this since at least the 80's --most likely forever. This is a website of an incident I am still going through at

Anonymous said...

Whats the update on this case? Our family and 8 others have recently been a victim of corrupt prosecutor and Federal Judge.