By Brad Heath and Kevin McCoy
USA TODAY
WASHINGTON — James Strode hid his face with a scarf the evening he walked behind a counter in a Seattle Rite Aid pharmacy, grabbed a clerk by the throat and threatened to stab her or other workers who heard her call for help on an intercom.
“Give me all the money,” he barked. “Somebody better give me some money or someone is going to get stabbed.”
The November 2006 robbery, detailed in a police report, was one of the most menacing episodes in a criminal career that spanned two decades and four states. Strode’s record includes convictions for at least three burglaries, one robbery, a theft, an attack on a public safety officer and a bank robbery tried in federal court.
Strode might well have been in federal prison at the time of the Rite Aid robbery. But the bank robbery conviction and sentence that could have kept him there were wiped out in 2000, when an appeals court concluded that the federal prosecutor in charge of Strode’s trial had “crossed the line” by making improper arguments to the jury.
So instead of keeping Strode behind bars for a decade, the U.S. Justice Department agreed he could be released in less than half that time. About 13 months after he got out, Strode held up the Seattle pharmacy.
What happened to Strode underscores one of the least recognized consequences of misconduct by Justice Department attorneys in charge of enforcing the nation’s laws. Although those abuses have put innocent people in prison, misconduct also has set guilty people free by significantly shortening their prison sentences.
In some cases, they served no additional time. New crimes sometimes followed.
A USA TODAY investigation has documented 201 cases since 1997 in which federal courts found that prosecutors violated laws or ethics rules. Each was so serious that judges overturned convictions, threw out charges or rebuked the prosecutors. And although the violations tainted no more than a small fraction of the tens of thousands of cases filed in federal courts each year, legal specialists who reviewed the newspaper’s work said misconduct is not always uncovered, so the true extent of the problem might never be known.
USA TODAY found that in at least 48 of those cases, the defendants were convicted but, because of prosecutorial misconduct, courts gave them shorter sentences than they would have received otherwise. If prosecutors’ chief motive for bending the rules is to ensure that guilty people are locked up, their actions often backfire.
In Washington, D.C., alone, court records show the Justice Department agreed to shorter prison sentences for at least eight convicted murderers during the past decade after judges and defense attorneys discovered that prosecutors had improperly concealed evidence that could have helped the defendants and their attorneys contest the charges.
The latest such deal came in March, when prosecutors agreed to an eight-year sentence for a defendant who fatally stabbed a 45-year-old man in front of two young children.
Bill Miller, a spokesman for the U.S. Attorney’s Office in Washington, said Monday that seven of the eight convicted murderers were prosecuted “by a single lawyer who left the office more than 15 years ago, hardly a systemic problem” in an office of more than 300 prosecutors. “One mistake is a mistake too many,” Miller said. “But those mistakes must be placed in proper context.”
USA TODAY’s examination, based on tens of thousands of pages of government documents and court records, found that such arrangements — including promises of lenient sentences — are common when courts overturn convictions because of misconduct by prosecutors. They bring a quick end to cases that could embarrass the department or those in which the passage of time weakens the government’s case. In most cases, the arrangements call for defendants to plead guilty to a crime in exchange for a shorter sentence than they originally received.
The plea bargains give both sides an opportunity to cut their losses, says Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles and who reviewed USA TODAY’s research.
“From the prosecutors’ point of view, they just want to put that one aside and move on. That’s an unpleasant memory,” she says.
Justice Department officials did not comment on the practice of granting plea agreements after misconduct findings. Instead, spokeswoman Jessica Smith said Monday that USA TODAY’s investigation “misleads readers by providing a statistically inaccurate representation of the hard work done by federal prosecutors ... by cherry-picking a handful of examples dating back to the 1990s and confusing cases where attorneys made mistakes with cases where actual prosecutorial misconduct was involved.”
Nonetheless, department records and court files from across the nation show that some of the people who walked away with shorter prison sentences because of misconduct returned to crime almost as soon as they went free. Strode, whose police, prison and probation reports show some substance abuse and a fondness for tattoos, was among them.
Seattle police arrested Strode for the Rite Aid robbery a few minutes after he fled the store; he was trying to escape on a public bus after taking four cartons of cigarettes from the store. That crime put him in state prison for two years.
Authorities soon were looking for him again.
‘Severe misconduct’
The police usually knew where to find Anthony Washington, too.
Washington was in middle school the first time he was arrested for selling illegal drugs in New Haven, Conn. By the time of his most recent arrest, in 2008, federal prosecutors charged that Washington had established himself as a “significant” supplier of PCP — a drug that can cause hallucinations — for the city’s drug dealers.
Washington could have been in federal prison instead of selling PCP. But the case that almost put him there came to an abrupt end four years earlier, after a judge found that the federal prosecutor in charge had committed “severe misconduct” that left her no choice but to overturn Washington’s conviction.
The case began in 2001, when a tenant in the apartment building where Washington’s girlfriend lived called police to report seeing Washington with a gun. It was not the first time Washington had been arrested on a gun charge. Because he already had a long felony record in 2001, his possessing a gun was a federal crime. The charge could have put Washington in prison for up to 10 years; after a short trial, a jury found him guilty.
But court records indicate that the prosecutor never told Washington’s attorney that his accuser — who died before the trial — previously had been convicted of filing a false police report, a fact that should have been disclosed. Prosecutors maintained in a court filing that they were unaware of the charge.
Beyond that, U.S. District Judge Janet Arterton said the prosecutor had posed a “barrage” of impermissible questions to Washington’s girlfriend during the trial about conversations with him and had brought up a previous shooting she had ruled inadmissible.
The violations were so serious that Arterton wrote she could not “confidently say that a conviction would have been obtained in the absence of the misconduct.” She threw out the jury’s guilty verdict.
Instead of trying Washington again, the Justice Department dropped the charges, saying in a court filing that a new Supreme Court ruling made it unlikely that jurors would get to hear the tape of the tenant’s 911 call. Washington, who had been jailed while the government decided whether to retry him, went free.
Because his trial was tainted, there is no way to know for sure whether Washington committed the crime, though he insisted in an e-mail from prison that he did not. But there is no doubt that he returned to drugs and crime almost as soon as he was released. Two months later, the police charged Washington with interfering with a police officer. Another drug arrest followed, records show.
“We told him that whatever he was doing, to stop it, stop selling it,” Washington’s grandmother, Vergie Strother, says.
Other relatives say there was little they could do. Washington started selling drugs before he turned 13, according to court records that offer glimpses into his youth. He started using marijuana and PCP not long after that. His mother used crack, and relatives say Washington sold drugs as a child to take care of his brother and sisters. Sometimes his mother asked him for money to buy drugs. As an adult, he spent more Christmases in jail than he did at home.
Washington did not deny that he sold drugs. “It was fast money, and I could not get a job. But I had to support my family and kids,” he said in an e-mail.
“He was trying to be the man of the house, trying to take care of his mother and sisters and his brother,” Strother says. “At the age of 12, he was out there. ... He’s been out there ever since.”
In December 2007 — on the day he finished parole from another arrest — Washington sold $500 worth of PCP to an FBI informant. Two months later, the FBI tapped Washington’s cellphone and recorded him making plans to bring liquid PCP from New York to New Haven. Federal prosecutors ultimately charged that Washington had been involved in transactions involving at least 400 grams of PCP, described as an “enormous quantity” of the drug.
Washington, now 34, pleaded guilty in 2008. Cathy Strother, his aunt, says she hopes federal prison changes him. “I’m hoping he’s going to be straight when he comes out,” she says. He is scheduled to be released in 2017.
“Do guilty people get out because prosecutors break the rules? Yeah,” says Joe Lawless, a Philadelphia defense lawyer and the author of one of the nation’s first textbooks on prosecutorial misconduct. “That’s why the rules are there. It’s by maintaining those rules that the system is going to work.”
Strode’s plea deal
The closest thing there is to a biography of James Joseph Strode might be the accumulation of reports in police stations, courthouses and prisons across the western United States. They detail a theft conviction in California that resulted in a 16-month state prison sentence, then more charges in Arizona, Oregon and Washington.
In 1998, Strode came to the Justice Department’s attention after police arrested him for the unarmed robbery of a Beaverton, Ore., Bank of America branch. Police found Strode about a mile away from the bank. In his mother’s apartment, they found a jogging suit like the one the robber had worn. Tellers at the bank identified Strode as the robber.
A jury had no trouble finding him guilty, even though his mother, a Vietnamese immigrant, testified he couldn’t have gotten into her home to either get or dump the incriminating jogging suit. The trial judge sentenced him to almost 10 years in prison.
Two years later, the U.S. Court of Appeals for the 9th Circuit threw out Strode’s conviction because of the way the prosecutor had handled the case.
Its order said the prosecution, led by Assistant U.S. Attorney Fredric Weinhouse, had “crossed the line” by appealing to jurors’ fears about crime and by assuring jurors that a prosecution witness was telling the truth, both practices that courts have long said are improper. The court also said police had been too “suggestive” when they asked a clerk from a nearby Texaco station to identify Strode from a photo array.
Instead of putting Strode on trial again, the government agreed to a deal. Strode pleaded guilty and was sentenced to 55 months in prison, slightly less than half of his original sentence. He left federal prison in October 2005.
About two months later, police records in Seattle show that Strode burglarized the loading dock of a Macy’s store and a Seattle municipal transportation facility. He pleaded guilty and was locked up for eight months. Then he robbed the Seattle pharmacy and spent two more years in prison. Three months after that, he was charged with misdemeanor assault of a public safety officer and related crimes in Portland.
Even so, by 2009 there were signs that Strode’s life was turning a corner.
His probation officer, Joel Robison, says Strode had moved into a group home that specialized in treating mental health problems. Robison says Strode seemed “sort of damaged from all the years of doing whatever (drugs) he was doing.”
A case is closed
The most recent chapter in Strode’s biography began during the pre-dawn hours of Oct. 1, 2009. Three Portland convenience stores were hit by a robber police believe was Strode.
Then, barely disguised beneath the hood of a gray sweat shirt, Strode walked behind the customer service counter of an Albertsons supermarket in nearby Aloha about 11 a.m. He flashed a black-handled steak knife at the two young women working there. The incident was captured on a store security camera.
“Open the till; open the till or I’ll cut you,” Strode warned, according to the account the women later gave investigators.
As the women backed away, he scooped $715 out of the cash register, darted out the front door, dumped the knife and sweat shirt in a nearby trash can, and jumped onto a public bus.
That night, a sheriff’s office report shows, he hung out with friends outside a Portland McDonald’s. He said he felt ill but didn’t go back to the group home.
Instead, the girlfriend of one of Strode’s friends — a woman who told the police she didn’t even know his first name — let him sleep on the floor of her second-floor apartment, across the street from the city’s minor-league ballpark. She gave him a blanket and a pillow.
Roughly two hours before sunrise, the woman says, Strode was sprawled on his back, unresponsive, hands spread out. Authorities found a fresh needle mark on the inside of his right elbow, an unused heroin cooker in the left pocket of his jeans, and a cocktail of heroin and cocaine — known colloquially as a “speedball” — in his veins.
Police and the county medical examiner’s office wrote one last report for Strode’s files: He was dead at age 42.
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