Detroit Free Press

Perry's jury, too, was railroaded
February 9, 2007

BY BRIAN DICKERSON
FREE PRESS COLUMNIST

Dave Gorcyca wants you to believe Circuit Judge Denise Langford Morris was dissing 12 Oakland County jurors this week when she threw out their guilty verdict in the sexual-assault trial of Oak Park teacher James Perry.

Nice try, sir. But it was the prosecution's conduct, not the jury's, that prompted the court to order a new trial for Perry.
Not one word in Langford Morris' five-page opinion faults the men and women who convicted Perry. She isn't saying jurors screwed up; she's saying they never heard the evidence they were entitled to.

In a series of stories published after Perry's September conviction, Free Press staff writers L.L. Brasier, John Wisely and Suzette Hackney revealed that police never even tried to interview two eyewitnesses whose testimony undermined the state's case against Perry.

In an opinion that implicitly recognized the jury's good faith, Langford Morris concluded jurors would have voted to acquit Perry if they'd heard that testimony.

A reckless prosecution
Besides casting grave doubt on Perry's guilt, the record of police and prosecutorial negligence laid bare in Langford Morris' order should scare the daylights out of every adult who works near young children.

The case against Perry rested on the conflicting accounts of two accusers who were 4 and 5 at the time of the alleged attacks. The prosecution's failure to interview adults whose testimony contradicted the children's accounts bespeaks an almost willful indifference to the truth.

But it gets worse: In a prepared statement attacking the judge's ruling, Gorcyca said he was "still confused by the defendant's professed innocence and his continued refusal to take a state-offered polygraph."

Poisoning the jury pool
Besides being calculated to bias citizens who could be called as jurors in Perry's retrial, the prosecutor's remarks appear to violate a state Supreme Court rule that prohibits prosecutors from publicizing evidence they know would be inadmissible in court. Under Michigan law, neither side in a criminal case may make any reference to polygraph results.

Steve Fishman, a veteran defense lawyer who practices mostly in Detroit's federal court, called Gorcyca's remarks "an astonishing breach of prosecutorial ethics."

Peter Henning, a former federal prosecutor who teaches professional ethics and criminal law at the Wayne State University School of Law, said Gorcyca was "certainly very close to the ethical line" a North Carolina prosecutor is accused of crossing in the rape case against Duke University lacrosse players. Durham D.A. Mike Nifong faces disciplinary action for prejudicial pretrial statements in the case.

Gorcyca "seems to be turning the presumption of innocence on its head," Henning observed.

This seems like an excellent opportunity for the Attorney Grievance Commission, which investigates allegations of professional misconduct in our state, to remind prosecutors that they, too, must play by the rules.

Contact BRIAN DICKERSON at 248-351-3697 or bdickerson@freepress.com


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