A Portrait of Prosecutorial Misconduct

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

In State of Alaska vs. Clayton Allison, case #3PA-09-2996CR, prosecutorial misconduct was an extreme aggravating factor in wrongful conviction. Numerous elements of corruption and/or incompetence led up to the involvement of the District Attorney's office, but it was the ultimate behavior of these professionals that assured such a known miscarriage of justice.

The original prosecuting attorney who brought this case before a grand jury was Rachel Gernat, who was later replaced due to a conflict of interest. The case was then handed over to Trina Sears for a number of years, who eventually left state service. Ultimately, the trial was led by William "Mike" Perry and Krista Anderson from the Palmer District Attorney's office. The judge in the case, Vanessa White, enabled much of this misconduct and at points outright abandoned her role as a neutral party, as is outlined in Clayton's appeal brief.

Unfortunately, every prosecutor involved in the case - from beginning to end - contributed in some way to the wrongful conviction, and this page attempts to summarize those contributions below. We have used the Alaska Rules of Court 2015-2016 Edition: Alaska Rules of Professional Conduct - available through the Alaska Bar Association - as a framework.


Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause

FROM THE COMMENTS: “[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4 [Misconduct].”

The original prosecuting attorney on the Allison case, Rachel Gernat, specifically stated to the first grand jury that, “I would say that we believe that the evidence, the highest count that the evidence supports is manslaughter, but the ultimate decision is up to the grand jury.”

  • This grand jury evidence included an extremely large amount of evidence which was never presented before a jury again, including: suppressed statements which had been coerced from Clayton Allison, false testimony from multiple EMTs involved, and references to inaccurate information like a ‘metal’ high chair.
  • At the following grand jury, the DA’s office and Trina Sears elected to maintain the accusation of Murder 2 in a “menu of options” despite having substantially less evidence than was presented in the first grand jury, which they formerly did not believe supported a Murder 2 charge.
  • Subsequently, Mr. Perry fought extensively through filings, hearings, and at trial for the right to present “multiple theories of the case.” He included elaborate detail in his closing arguments and sentencing memorandum about his claim that Jocelynn Allison had died from shaking injury, despite stating on record in proceedings held after jury selection that he did not believe she had been shaken at all.
  • Ultimately, Clayton Allison was convicted and sentenced for Murder 2.

Complete Loss of Self-Control and Improper Influence of Jury Decision

  • On February 13, 2015, the trial had been concluded and jury members were reviewing audio and visual evidence in a small courtroom. Mr. and Mrs. Allison, Mrs. Allison's mother, defense counsel, Ms. Anderson, and the court clerk were present. The judge was not present. Mr. Perry burst into the courtroom in an apparent visible rage over individuals being present. He entered the courtroom by slamming both fists into the door hard enough to cause it to bounce off of the side wall in the small courtroom, charging toward defense counsel, and pointing towards Mrs. Allison and her mother who were seated behind them. He was red in the face, and whisper-screeching through his teeth, "What are they doing in here?! I want the judge in here RIGHT NOW!" His fists then were balled, down at his sides, and visibly shaking. All of this took place with the jury on-looking in shock, and Mrs. Allison and her mother were frightened out of the room before even being asked to leave..
    • Mrs. Anderson had been present during the proceedings the entire time, and apparently did not believe the presence of the family members was a problem, and appeared as visibly shocked at his entrance as the jury members and defense counsel.
    • The judge came in - AFTER THE JURY HAD BEEN SENT AWAY - and clarified who was allowed to be present and who was not, but specifically stated that it had not been posted and the law was unclear. However, she did not clarify this to the jurors when they returned.
    • Mr. Perry's behavior clearly implied to the jury that the family was engaged in outrageous behavior - further bolstering his trial-length mantra that the family members were untrustworthy and suspect. This implication was not countered by the judge.
    • The jury rendered a decision of guilty on all 3 counts less than 2 hours after this display of a complete loss of self-control. They had already requested to review additional evidence BEFORE this event which would have required at least an additional day of deliberation, and must have changed their minds and elected not to review it immediately after the incident.

While there is no way to definitively prove that this behavior was the direct cause of the jury's ruling, there is also no way to discount it as an event that could have had high probability of prompting the jury into rendering an emotional decision, instead of one based on the facts of the case. It would be easy to infer based on the circumstances of this event, that this behavior could serve as proof of Mr. Perry's continual implication that the family of the accused was misbehaving to cover for the defendant. The judge herself did not find that they had knowingly done anything improper, but did not specifically explain this to the jury members when they returned.

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable and timely remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

FROM THE COMMENTS:

“There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.”

“Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes.”

“A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances.”

“Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence, or failing to disclose information to the tribunal when required by law to do so.”

  • In numerous court filings and public statements before the court, Mr. Perry claimed that CJ Allison’s diagnosis of Ehlers-Danlos Type 3 was “fake,” “local,” and “misleading.” Mr. Perry has never provided the court with documentation of any kind to support this claim. Meanwhile, Ms. Allison has provided a copy of the diagnosing paperwork from Mayo Clinic in Rochester, MN - clearly listing her patient number and other identifying information. Mr. Perry even went so far as to accuse CJ Allison on record of: lying about her symptoms; convincing her family to report false symptoms; and gain a diagnosis as a shield for her husband. He has no evidence to support this claim.
  • In numerous instances at trial, Mr. Perry and Ms. Anderson made misleading or false statements about the reported history of the case - specifically incidents which could have caused Jocelynn’s earlier injury, and a history of short falls - as relayed to investigators by family and friends. This information is outlined in more detail in Mrs. CJ Allison’s letter to the court on prosecutorial misconduct as filed on 7/14/2015 as an addendum to her victim impact statement. Both prosecutors then proceeded to weave an elaborate narrative in direct and cross examination, as well as closing arguments, that the family’s story of what happened was “continually changing” over time, and heavily implying that these events had not been reported until after affidavits were filed in 2012. This narrative is completely unsupported, and outright contradicted, by the case evidence in their possession, which clearly outlines an account of each incident being reported by family early on in the investigation if not on the very night of her death.
  • Ms. Anderson, when conducting cross examination of Joy Vaughn, implied that the hand motions being made by Joy to describe Jocelynn pulling herself to standing were somehow evidence that her testimony was contaminated, and publicly accused other witnesses of providing information on previous testimony to Mrs. Vaughn. This left Mrs. Vaughn disoriented, because she had no knowledge of the previous testimony, and unsure of what the accusation was even referring to. There was no evidence of this contamination. Further, Ms. Anderson challenged Ms. Vaughn by saying that her prior interrogations contained no mention of Jocelynn having this ability. Mrs. Vaughn was unable to do anything but state her belief that the claim was untrue. In fact, Mrs. Vaughn had described her belief that Jocelynn had pulled up on the gate to investigators in detail during BOTH interrogations which she was being questioned from.
  • Mr. Perry stated in closing arguments, and later published in his sentencing memorandum that, “[JA] had bruising on her extremities and on her torso consistent with grabbing and possible shaking.” Mr. Perry pressured witnesses to agree with this assertion in direct and cross, but was unable to influence any of the experts into agreeing that this was proof of any particular type of hand placement. More importantly, Mr. Perry admitted on court record before trial that he personally did not believe Jocelynn had been shaken. The judge had to remind him at that time that she hoped he did not “argue that” because this was not about what he believed.

Rule 3.4 Fairness to Opposing Party and Counsel

(a) A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law

(e) A lawyer shall not in trial allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. A lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, nor state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused

  • On February 10, 2015, Mr. Perry threatened witnesses in the Allison case on record under the pretense of disclosing his intentions or concerns. During a discussion on character witnesses, in which multiple witnesses or family members of witnesses were present, he stated, “I’m not as worried, as much, about prejudice as the potential to mislead the jury. And at this point, I don’t want to be accused later of vindictive prosecution. But my other thought is, if somebody takes the stand, and swears under oath, and testifies as to what I believe is to be untruthful testimony, they - in their own prosecution for perjury - the suppressed statements or whatever may be an important factor in that, um, in a separate trial, in a separate case that doesn’t have anything to do with Mr. Allison. So, I… if I feel like people are walking the line, and committing perjury, they’re opening themselves up to that as well. So.”
    • The judge’s response was to immediately change the subject back to the matter at hand and their discussion of evidence rule 406, and not address the threat.
    • Mr. Perry was witness to an obvious case of perjury during jury selection, which led to potential jury contamination in the Allison case, and declined to prosecute.
    • Later in the same discussion, Judge White clarified that personal witness accounts of observations of Clayton interacting in a “patient, kind, and gentle” manner with JA would be fact evidence and not fall under the category of testimony for character. After being asked if he would like to comment on the clarification, Mr. Perry stated, “There’s nothing more to be said, Your Honor. I find the entire thing dishonest. It does shock my conscience that family and friends would get up here and ignore evidence directly, and do that to - underoath.” This clarified for individuals present the form of testimony he intended to follow with charges of perjury.
  • During cross examination of expert witness for the defense, Dr. Janice Ophoven, the witness expressed frustration in understanding how to explain a biological process she had described in detail many times any more clearly. Mr. Perry replied by stating, “You could tell the truth.” Mr. Perry was admonished by the judge with a statement and a smile. The response from the jury seemed to be amusement.
  • During direct and cross examination of Mrs. CJ Allison, Mr. Perry and Ms. Anderson both conducted lines of questioning that they knew Mrs. Allison was specifically prohibited by judge’s order to answer. This questioning was so distressing, that Mrs. Allison plead with the clerk’s office for assistance and was turned away.
    • They questioned her about her motives for the “research” she was doing after Jocelynn’s death; knowing she was prohibited from explaining that she was in search of an explanation for why her daughter’s tissues had been so fragile, and her ultimate diagnosis with a connective tissue disease.
    • They also asked her why she and her family had filed affidavits with the court; knowing she was not permitted to reveal that the case had previously been dismissed and they were hoping to prevent prosecutors from continuing to disclose false information to the next grand jury.
    • Most outrageously, Mr. Perry conducted an extremely misleading line of questioning about her January 23, 2009, interrogation by Alaska State Troopers; implying that she had not provided information and was now making it up later, and knowing that she was specifically prohibited by the judge from testifying about “the demeanor of the police interrogating her” and their complete disinterest in gaining additional accurate information

Rule 3.8 Special Responsibilities of a Prosecutor (continued)

The prosecutor in a criminal case shall:

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused

  • Mr. Perry argued extensively at trial for access to defense counsel email records of interactions with or between their expert witnesses, citing his right to expose potential bias. However, it was not discovered until multiple weeks into trial that there had been a meeting between multiple of his own fact and expert witnesses - all but one of whom had already testified - to discuss their theories of the Allison case. At trial, he did not claim to be unaware of this meeting, but instead attempted to offer a vague email about a meeting of undetermined nature with a statement that he believed they were aware.
  • At trial and at subsequent sentencing hearings, Mr. Perry made accusations against Mrs. Allison, her family, and other supporters in front of local media. He accused them of providing false or misleading information about the facts of the case, and her personal illness. This was an obvious attempt to diminish the significance of community support for Mr. Allison, and cast doubt on their honesty and the information they were providing in support of Mr. Allison.

Rule 4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person

FROM THE COMMENTS

“Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4 [Misconduct].”

  • Many of the false and/or misleading statements outlined above were made publicly in front of the media.
  • Additionally, during statements made at Clayton Allison’s sentencing hearing on July 8, 2015, Mr. Perry made extensive additional false statements about the evidence that had or had not been shown in court or on the record. The full extent of these false statements will have to be broken down in a separate analysis, but included at least: the extent of JA’s injuries, testimony offered by experts, and testimony offered by witnesses.
    • One of these false claims was even published in print by Channel 11, KTVA. The following information is false. Mr. Perry was listing experts who testified, but the majority of these doctors testified about Jocelynn's personal health history, and did not claim to have any opinion or conclusion of how these injuries related to the possibility that a fall occurred at the home.
      • “There was the family doctor, there was a physical therapist, there was a nutritionist that was asked, there was the surgeon that worked on her,” said Michael Perry of the Palmer District Attorney’s office. “There was the neurologist that was treating her, and then there was the ER docs. All of these people came in, as well as a family practitioner who does a lot in abuse cases and advises and has different roles in that. And all of them said these injuries are not consistent with the story of a fall down these eight padded stairs.”

Rule 4.4 Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

  • Mr. Perry has violated this rule on numerous occasions in the form of public accusations against Clayton Allison’s family, friends, and other supporters both on record and in official legal filings. Mr. Perry is aware that these individuals are unable to challenge these accusations without the ability to afford independent representation.

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