Alleged DOJ misconduct spreads to Indiana death penalty case

Marilyn Odendahl for www.theindianalawyer.com

Accusations of sexual harassment and prosecutorial misconduct at the U.S. Department of Justice’s Capital Case Section have ensnared a death penalty case in the Southern District of Indiana against a federal inmate charged with killing his cellmate.

The allegations of unwanted sexual advances and discrimination against women were revealed in a civil lawsuit filed against the Justice Department. Attached to the complaint was a declaration by a longtime attorney at the Department, Amanda Haines, which also detailed a hostile work environment and specifically pointed to violations in handling the Indiana death penalty case.

Chief federal defender Monica Foster of the Indiana Federal Community Defenders is representing the inmate, Andrew Rogers. While working on the case, Foster was tipped off to take a look at the civil lawsuit, Rodriguez-Coss v. Sessions, 3:16-cv-00633, where she found the declaration.

Foster and her team had been surprised when the Department of Justice decided to push for the death penalty for Rogers. She said she is not surprised by the claims of prosecutorial misconduct, but she is angered by the revelations of how the female attorneys were treated.

“I think it is appalling behavior that should not be going on anywhere in any office, least of all the office deciding life and death,” Foster said. “… I have some empathy for the women who had to work in that office under those conditions. I can’t imagine going to work in that environment every day.”

The civil lawsuit and accusations of discrimination and sexual misbehavior were spotlighted in a New York Times article published Sunday.

Documents filed as a part of Jacabed Rodriguez-Coss’ complaint highlight discrimination and retaliation against women attorneys in the section as well as the former Capital Case Section chief Kevin Carwile and his deputy Gwynn Kinsey, accused of “turning a blind eye” toward rampant sexual harassment. Male attorneys were alleged to have made unwanted sexual advances to female interns and administrative staff, bragged about sexual conquests and showed naked pictures of women to each other during office hours.

Haines’ declaration also accuses Justice Department attorney James Peterson of mishandling the death penalty case against Rogers. In particular, he was said to have committed the violation of interviewing more than 12 witnesses without a law enforcement officer or another official being present. He then “compounded this error” by destroying his interview notes, particularly from witnesses who were suspected of having information that could have been detrimental to the death penalty case.

After telling Carwile and Kinsey about the problems with the Rogers case and noting the defense needed to be alerted, Haines said to her knowledge, no action was taken. The office did not investigate or impose any kind of discipline.

“To the contrary,” Haines stated in her declaration, “the Rogers case was simply reassigned from me to other attorneys in the Section (it has been reassigned three times since then).”

The office of the U.S. Attorney for the Southern District of Indiana declined to comment. Instead it pointed to the statement Justice Department spokesman Ian Prior made to the New York Times.

“The Department of Justice takes these allegations extremely seriously but cannot discuss specific employee disciplinary actions, or comment on internally handled personnel actions or matters that may impact personal privacy,” Prior said.

Based on the allegations, Foster is asking the court to bar the government from seeking the death penalty against Rogers. The case is United States of America v. Andrew Rogers, 2:16-cr-00018.

Rogers, who was serving a 27-year sentence for robbing a Subway sandwich shop in Illinois, was housed at the high-security U.S. penitentiary in Terre Haute at the time his cellmate was found dead in the cell in a pool of blood. According to court documents, Rogers confessed to the stabbing, saying he did not want to live in a bathroom with another man for 27 years.

Foster said Rogers had “begged” prison officials for mental health treatment prior to the incident with his cellmate. However, she said, he was given puzzles rather than medication or therapy. That is suspected to be what the witnesses told Peterson, which did not help the case for capital punishment.

“The government’s conduct here is an affront to the judicial system itself and has, in a way, sought to make the Court complicit in its misconduct,” Foster wrote in the motion to strike the notice of intent to seek the death penalty. “The government has brought a capital proceeding before the Court, and the Court has understandably assumed that the government conducted the death-penalty authorization process in good faith. The recently discovered information demonstrates, however, that the government has enlisted the Court in a sham proceeding where the death penalty was authorized by the use of unconstitutional tactics.”

In her motion, Foster also asserts that the high tolerance for sexual misconduct and sexual discrimination undermines the integrity of the capital review process. She questioned whether she was given the proper respect when she argued against the death penalty before the Capital Review Committee. Carwile was a member of that committee and he, according to Haines, holds the view that “women only go to law school to find rich husbands.”

The government counters that Peterson contacted the prison employees in 2015 who were listed as providing for Rogers’ care and custody. No one offered any facts that would exculpate the defendant or impeach the government’s witnesses.

Peterson subsequently turned their comments over to the Attorney General and, in 2017, summarized his contact with prison’s medical personnel in a memo for the defendant’s counsel.

The government argues that the statements made to Peterson just illuminated the information contained in the prison records and those records were already in the possession of the defendant.

“The (Bureau of Prisons) personnel uniformly agreed with their earlier assessments that the defendant did not manifest symptoms of any mental health malady that required intervention beyond that which was requested and provided,” the government said in its response motion. “That information is not exculpatory. That information is not impeaching. That information was not, therefore,” subject to disclosure under (Brady v. Maryland, 373 U.S. 83 (1963)).”

The Rogers case is continuing. Judge William Lawrence of the U.S. District Court for the Southern District of Indiana has ordered each party to file a proposal as to the scope of the discovery by Friday.