The prosecutor's job is chock full of opportunity for misconduct. Virtually limitless discretion, disproportionate access to information and resources, internal incentives, external adversaries—all of these elements create both temptation and opportunity for wrongdoing. A recent story out of North Carolina demonstrates just how blatant such prosecutorial misconduct can be.
In October of 2014, Barshiri Sandy, Henry Surpris, and another man were tried on a number of felony charges including armed robbery. The three men had been involved in an altercation that turned violent at the home of Marcus Smith. Smith had been shot in the arm by one of the men, Sandy and Surpris had both been shot by Smith, and the defendants got away with about $1,100.
The prosecution argued that the men robbed Smith at his home because he was a club promoter and they knew he would have a lot of cash on him. Smith claimed that he was startled when they approached him in his garage, and said he managed to grab a gun and shoot the two men.
The defendants testified, however, that that the confrontation was not, in fact, an armed robbery but a drug deal gone wrong. From the North Carolina Court of Appeals:
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.
The prosecution made it sound as if this was a complete lie. During trial, Wake County Assistant District Attorney Colleen Janssen disputed the defendants' story, stating to the jury that, "there has been absolutely no evidence from the witness stand outside the defendants’ testimony that this has anything to do with drugs."
But turns out that someone had evidence—ADA Janssen.
She knew that Smith was being investigated for drug trafficking by the Raleigh Police Department. She communicated with the lead RPD detective through her private email about the investigation, and "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." As if that isn't bad enough, during trial Smith was the star witness for the prosecution and stated under oath that he was not a drug dealer. ADA Janssen knew this was a lie, and yet she said nothing. She lied in her closing argument, and the two men were convicted.
Late last month, the Court of Appeals ruled that Surpris and Sandy should get a new trial due to Janssen's misconduct. Janssen was put on paid leave, and later resigned. The head of the Wake County prosecutor’s office, Lorrin Freeman, acknowledged that the case was concerning.
"Any time the Court of Appeals makes a determination that somebody in a DA’s office has violated a defendant’s rights, the public has a right to feel confident that that matter is going to [be] looked at and be handled," stated Freeman.
“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?"
Note: This post has been edited to reflect that Janssen has resigned.