It now appears that defense attorneys for Michael Morales, who is scheduled to be executed Feb. 21 for the 1981 rape and murder of 17-year-old Terri Winchell, submitted phony affidavits in their attempt to win clemency or otherwise prevent the execution.
One of those attorneys is Ken Starr, who worked so hard investigating allegations that President Clinton committed perjury. Now Starr has fallen so low as to present documents that, according to California Attorney General Bill Lockyer's office, were "false and forged."
Will there be any consequences?
There should be.
Last week, as The San Francisco Chronicle reported, Starr and longtime Morales attorney David Senior released a document in which Patricia Felix, a witness against Morales, said that prosecutors had coerced her into giving false testimony against Morales during his trial.
San Joaquin County Deputy District Attorney Charles Schultz called the document "an outright forgery," and released an affidavit that, he said, really was signed by Felix. In it, Felix said her court testimony was truthful. She also said she never met Kathleen Culhane, the Morales investigator who claimed to have interviewed her in January — at an address where Felix hasn't lived in since July 2005.
Senior quickly dismissed the prosecutors' charges. He told the Associated Press, "When the D.A. and A.G. show up with badges and guns and say whatever, they can intimidate a lot of people, and that's their game." Morales attorney Ben Weston sent out a statement that dismissed the Felix counter-document as "the latest step in the 25-year pattern of fraud, interference and intimidation by the San Joaquin County District Attorney's office."
Weston also released statements from six jurors from the trial who, Weston said, "asked the governor to sentence Morales to life without parole rather than death."
Over the weekend, however, Morales' attorneys had to backtrack. Senior informed the governor's office that he was withdrawing declarations presented by a certain investigator, as he had found "substantial issues" that his office is investigating.
A generous person might say that lawyers can make mistakes and that they might unknowingly file bad declarations. Even I, cynic that I am, figured that was the story behind the first Felix declaration.
Except that in releasing the Felix document, Senior and Starr were impugning the integrity of the prosecutors and police, whom they essentially accused of suborning perjury. "They made me lie about many things," claimed Felix in the phony document. When lawyers present a serious charge like that, they have an obligation to vet it.
Certainly after prosecutors refuted the Felix document, Senior and Starr had an obligation to check any new affidavits from the same investigator. As Nathan Barankin of the state attorney general's office noted, "They were on notice once the Felix counter-declaration came in."
Yet the juror declarations apparently were bogus, too. Five jurors, who allegedly presented affidavits through Culhane, later signed affidavits, with their names blocked out, that say they never talked to Culhane. Some jurors said the declarations got their names or facts wrong. All five stipulated that, in fact, they do not support clemency — and were furious that their names had been used to discredit a sentence in which they still believe.
One juror, named Anita, was a guest opposite Weston on the "John & Ken Show" on KFI radio to counter the juror recantations. She later learned that her name was on one of the revoked declarations.
Senior and Starr did not return my phone calls. In the afternoon, the ACLU issued a press release that reported that the attorneys will continue to push for clemency or a successful appeal, but that the attorneys were not available for comment.
But after the defense lawyers have been so cavalier in accusing others of fraud — when they themselves passed on dicey documents — their credibility is finished. It's clear they would say anything without bothering to find out if it was true or false.
"Those who should be most upset by all this are those who oppose the death penalty because it undermines future claims," Barankin noted.
There should be hearings that get to the bottom of who knew what when. If the lawyers knew, or should have known, the documents were bad, they should be punished.
Otherwise, in the future, why should anyone believe death-row defense attorneys? If they can make accusations that, if proven false, will not result in punishment, then they can lie about anything.