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Jonathan Ringel

Fulton County Daily Report

05-04-2005

Federal appeals court raps former prosecutor05-04-2005



Nancy Grace, the host of a self-titled legal show on CNN Headline News, "played fast and loose" with her ethical duties as a Fulton County, Ga., prosecutor in 1990, a federal appeals panel has declared.



Monday's decision by the 11th U.S. Circuit Court of Appeals upheld a triple murder conviction won by Grace, explaining that her actions didn't change the result of the trial. It is the third time appellate courts have admonished Grace for her conduct as a prosecutor in Georgia. Grace served as an assistant district attorney in Fulton from 1987 to 1996, leaving that year to join Court TV as a commentator.



The three-judge panel on Monday criticized Grace for not following her obligations to disclose to the defendant's lawyer information about other possible suspects. The 11th Circuit also agreed with a magistrate who found it hard to believe that Grace did not knowingly use a detective's false testimony that there were no other suspects.



"Despite the failure of the prosecutor to fulfill her responsibilities," wrote Judge William H. Pryor Jr., the Georgia courts were not unreasonable to have upheld the convictions of Herbert Connell Stephens.



A Fulton jury held Stephens responsible for the June 1990 murders of John Davis, Toria Pope and Tony Daniel at the Red Oaks housing project in Atlanta. Stephens was sentenced to three consecutive life sentences.



Grace on Tuesday denied hiding that other people might have been involved with the crime, noting one of her witnesses said so in open court.



"While some of the comments of the court are hurtful to me," she added, "I am thankful for the unanimous decision" keeping the verdict intact.



Stephens' lawyer, G. Terry Jackson of Savannah's Jackson & Schiavone, said he was disappointed with the ruling and would consider asking the full 11th Circuit or the U.S. Supreme Court to review the case.



"It's very clear Mr. Stephens did not receive a fair trial," said Jackson.



Stephens' original trial lawyer, Fulton public defender Kenneth D. Kondritzer, called the court's description of Grace as playing "fast and loose" with ethical rules "an understatement."



Stephen Gillers, a legal ethics professor from New York University School of Law, wrote in an e-mail that Grace's actions regarding the detective were serious, "because submitting false sworn testimony to a court is probably the gravest violation of legal ethics."



DEFENSE KEPT IN THE DARK



The major issue before the courts reviewing the Stephens case was the existence of arrest warrants for two other people suspected of the murders. Stephens' lawyers have said that information could have steered the jury to acquit Stephens.



One witness identified John Wesley Ragin and Travis Williams as having been at the scene of the crimes along with Stephens and four conspirators. The four conspirators pleaded guilty the day Stephens went to trial and were sentenced to 18 months in prison.



Arrest warrants were issued for Ragin and Williams, but they never were indicted, according to the Georgia Supreme Court's 1994 review of the case, which upheld Stephens' convictions.



Although Kondritzer did not find out about the warrants until after the trial, "there is no proof that the State deliberately concealed the existence of those warrants," wrote Justice George H. Carley for the unanimous court.



Carley also dismissed claims that police testimony saying there were no suspects other than Stephens was false as a result of the arrest warrants. The justice noted that the evidence underlying the arrest warrants was admitted at trial. Stephens v. State, 264 Ga. 761 (1994).



Stephens' habeas corpus challenges to the verdict failed at a state court and the U.S. District Court for the Northern District of Georgia, with both citing statements from 10 witnesses who either saw Stephens shoot the victims or saw him at the scene.



The federal judges, however, showed they were troubled by Grace's actions. U.S. Magistrate E. Clayton Scofield III wrote in 2003 that the "overwhelming" evidence of Stephens' guilt made it unreasonable to think that false testimony indicating there were no other suspects would have made a difference.



Scofield added that he was not condoning Grace's actions, writing, "The prosecutor clearly played fast and loose with her disclosure obligations in this case." Stephens v. Hall, No. 1:99-CV-1317 (N.D.Ga. April 2, 2003).



Judge Charles A. Moye Jr. accepted Scofield's report, adding he "reluctantly finds that there was sufficient evidence" to support the state courts' conclusions. Stephens v. Hall, No. 1:99-CV-1317 (N.D.Ga. Sept. 11, 2003).



At the 11th Circuit, Pryor noted that the court was bound by rules requiring it to be "highly deferential" to state courts' rulings. He was joined by Judges Gerald B. Tjoflat and Joel F. Dubina.



Pryor pointed out that during testimony of the state habeas case, Grace denied that detectives provided her with the arrest warrants that were at the heart of Stephens' claims.



"Regardless," Pryor added, "it was Grace's duty to learn about the warrants and disclose them" to Stephens' lawyers. Pryor later said the court agreed with Scofield's belief that Grace "played fast and loose" with her ethical duties.



But the state courts were not unreasonable, Pryor concluded, to say that Grace's failures did not materially change the result of the trial. As a result, the panel rejected Stephens' arguments that Grace's actions constituted a violation of his due process rights. Stephens v. Hall, No. 03-15251 (11th Cir. May 2, 2005).



GRACE'S THIRD SCOLDING



This is the third time Grace's conduct as a prosecutor has been criticized by an appellate court.



In 1997, the Georgia Supreme Court skewered Grace for her actions in prosecuting Weldon Wayne Carr for allegedly setting fire to his house and murdering his wife. Carr later was freed when Fulton prosecutors waited too long to bring him up for a retrial. While the court reversed Carr's 1994 conviction for other reasons, the justices said Grace withheld evidence entitled to the defense and made improper opening statements and closing arguments.



"We conclude that the conduct of the prosecuting attorney in this case demonstrated her disregard of the notions of due process and fairness, and was inexcusable," wrote then Chief Justice Robert Benham. Carr v. State, 267 Ga. 701 (1997).



In 1994, the Georgia high court voted 6-1 to reverse a heroin trafficking conviction won by Grace because she "exceeded the wide latitude of closing argument" by referring to drug-related murders and serial rape, which were not at issue. Bell v. State, 263 Ga. 776 (1994).



Two calls and an e-mail to CNN officials seeking comment were not returned.



Asked whether her run-ins with appellate judges discredit her as a legal commentator, Grace noted that she tried more than 100 jury trials and handled thousands of guilty pleas in more than 10 years as a prosecutor.



"It's a lifetime of work," she said, noting that she decided to become a lawyer after her fiance was murdered.



Echoing the tone she frequently takes on her TV show, which often focuses on crime victims, Grace asserted that Stephens was responsible for murdering three young people.



"Who knows what they could have become today?" she asked.





