The criminal justice system is defenseless against the united forces of a corrupt prosecutor and a perjured witness. When the judicial authority knowingly allows this behavior, the rights guaranteed to every citizen are nothing more than the mouthing of platitudes. In 2005, Alexander Aceval and Ricardo Pena were the victims of such a judicial lynching. In those cases, the prosecutor and the trial judge were aware that the investigating officers and one of the witnesses committed perjury – not once – but several times during the pre-trial hearings and the trials of each man. When advised of the perjury, rather than taking actions to correct it, the police, prosecutors, and even the judge conspired to allow this perjured testimony to be used against each defendant.
The testimony concerned the role of a paid police informant. The defendants were told that a confidential informant was used in the investigation leading to their arrests. Only two people could have been that informant – Chad Povish or Bryan Hill. Povish had set up the deal with Aceval. Prior to this investigation he had cooperated in several other investigations and was paid by the police for his cooperation. Povish and his companion were both well known to the officers investigating this case. Yet in sworn affidavits and in subsequent court hearings they claimed that both these men were strangers to the police when the drugs were exchanged and the arrest went down. Neither Hill or Povish where charged with any crimes. In fact, Povish testified at both the preliminary hearing and in the separate trials of Aceval and Pena. Povish testified that he was unaware of the fact that the duffel bag he and Hill were delivering contained 47 kilos of cocaine when in fact he intended to net 10% of the proceeds of the sale.
The prosecutor, Karen Plants, knew this shorty after the arrest. When she asked the arresting officer why Povish and Hill were not charged, she was told that Povish was a paid confidential informant. During the preliminary hearing, the officers and Povish falsely denied any prior relationship. To her credit, Plant informed her supervisor about the perjury and queried an appellate attorney on her ethical obligations. The matter was brought to the attention of the trial judge; however, Plant asked the court, ex parte to overlook this felony based on a belief that Povish would be targeted for retribution if this information was disclosed to the defendants. Later, during the trial of each defendant, she instructed the witnesses how to answer the questions and successfully objected each time the defense attorney attempted to elicit this information. Again, the trial court sanctioned this procedure.
The two defendants were charged with conspiring to deliver 47 kilos of cocaine and tried separately. Pena was convicted; Aceval’s jury did not reach a verdict. While the appeal was pending, the county attorney disclosed the misconduct, apologized to Mr. Pena and offered him a new trial. Having seen the error of his ways, Pena agreed to plead guilty to a lesser offense and offer testimony against Aceval. While the state’s case was now considerably stronger, Aceval was undeterred, unrepentant, and ready for his second trial. Just as a paranoid person may have real enemies, a perjured witness may also speak truthfully. Chad Povish and the lying police would now confess their sins and testify that while they were untruthful about some facts, they had not lied about others – specifically, that Mr. Aceval was an integral part in the distribution of a large quantity of cocaine.
Mr. Aceval decided to fight fire with fire and employed his own perjured witness. Unfortunately for him, his perjured witness had an epiphany and confessed his sin to the judge and prosecutor during the course of his second trial. In addition to the other evidence, now his own witness would condemn him. Mr. Aceval had little alternative but to change his trial strategy; he pleaded guilty and appealed to the higher courts. While he fought the good fight, prosecutorial misconduct rarely results in a dismissal of the criminal charges. After five years of legal wrangling, his sentence of ten to fifteen years was finally affirmed in December, 2010.
The phrase “corrupt prosecutor” is not entirely accurate. There is nothing in the record to suggest that Karen Plants was motivated by any ill will towards either man or desire for personal gain. In fact, her motive is better described as misguided altruism: she allowed the perjured testimony to protect the safety of a witness. While her motives may not have been impure, her actions were clearly illegal. She, along with the two investigating officers were later charged with conspiring to suborn perjury. Later, she pleaded guilty to felony misconduct in office and sentenced to six months imprisonment.
Ms. Plant’s troubles did not end there. There is no greater threat to the integrity of the judicial system than the use of perjured testimony. The prisons are full of people all too happy to reduce their stay by implicating others in their crime. Sometimes they tell the truth; other times they simply tell the police and prosecutors what they want to hear. While this type of testimony is inherently suspect, all too often prosecutors are simply indifferent to its truth reasoning that it is a matter for the judge or jury to decide. In these cases however, it was clear that Plants knew of the perjury and did everything in her power to make sure the jury did not know the true facts. The local grievance panel, noting her unblemished record and remorse, took pity and only suspended her from the practice of law for two years. Unsatisfied, the grievance administrator sought review with the state Discipline Board which disbarred Plant – the most serious sanction that could be imposed. The Board’s decision is a ‘must read’ by all prosecutors.