For some readers, especially those concerned about misconduct in Alabama, the name “Valeska” probably rings a bell. Last week, we covered a high-profile capital case alleging race discrimination against Valeska’s office. In late March, we wrote about an Alabama court’s dismissal of murder charges against George Martin, who once sat on death row and was only released because legions of exculpatory documents hidden by, among others, Valeska, came to the surface. Egregious misconduct seems to follow in the name’s wake. But, the name itself follows two different men, both high-powered prosecutors in the state of Alabama. Douglas Valeska is the outgoing District Attorney for the 20th Judicial District in Alabama. Donald Valeska was a long-time member of the Alabama Attorney General’s office, and now apparently works for the US Attorney in the Middle District of Alabama. Doug and Don are brothers. Nature or nurture, the two men certainly share one thing in common: both have committed serious ethical and constitutional violations time and time again in their careers as prosecutors.
Our most recent Alabama post explores some of the more prominent and troubling strands of Doug Valeska’s 30-year tenure as the DA in Dothan, Alabama. Last month, the New York Times published an important article exposing the way in which Valeska uses an arbitrary fee-based diversion program to raise enormous funds for his office while also privileging the interests of those he knows or favors. The report also heightens concerns about racial disparities in the local criminal justice system; those concerns originally gained serious attention when a well-respected non-profit organization published a report that revealed that Valeska’s office seriously curtailed the participation of African-American jurors in death penalty cases. Doug Valeska’s record also suggests that he seeks harsh punishments and recklessly undercuts the efforts of those seeking parole. Famously, Valeska’s office obtained a life without parole sentence for a 75 year-old disabled veteran suffering from chronic pain who was growing three dozen marijuana plants for medicinal use.
While his office leadership has generated a number of red flags, Doug Valeska’s history in the courtroom constructs its own ethical indictment. In 1998, the Alabama Court of Criminal Appeals reversed the capital murder conviction of Jerry Hammond in part because Valeska let the jury know that the defendant had previously received a death sentence for the same offense despite an explicit trial court ruling prohibiting him from doing so. In an earlier capital murder case, the same court cautioned Valeska, finding that some of his closing arguments were “clearly improper.” In another high-profile murder prosecution, Valeska engaged in “decidedly improper” behavior by “comment[ing] on both [the defendant’s] right to remain silent and [his] incarceration for an unrelated offense.” In that case, the courts have not ultimately disturbed the conviction, but Valeska’s aggressive conduct created a significant risk that the case would have to be pursued all over again, much like Jerry Hammond’s. Such behavior seems even more irresponsible when one considers that trial courts have sustained objections to similar comments by Valeska in the past.
A look at brother Don Valeska’s record as a prosecutor may shed light on Doug’s—perhaps Doug followed in the footsteps of the brother who became a lawyer about six years before he did.
Don Valeska gained international media attention a few years ago when the State of Alabama prosecuted Gabe Watson for the honeymoon death of his wife Christina (“Tina”) while the couple was in Australia. The defendant had served time in Australia for manslaughter, but the Alabama authorities wanted to nail him with a murder conviction. In what looks like a case of significant prosecutorial overreach, Valeska, the lead lawyer on the case, initially made public statements that he was 85% sure he would win. Instead, the trial court judge “openly scoffed” at Valeska’s claims regarding Watson’s motives during trial and ultimately dismissed the murder charges altogether.
While Valeska’s failed prosecution of Mr. Watson marked the first time the prosecutor received major press exposure, it is his quieter history of misconduct that deserves greater attention. Valeksa took murder defendant Phillip Wayne Tomlin to trial four separate times because each previous conviction was reversed. The first of those reversals in 1988 was directly attributed to Valeska; according to the Alabama Supreme Court, he made a highly improper closing argument that ran afoul of previous Alabama decisions protecting the defendant from adverse inferences and damaging innuendos.
The case was retried in 1990, and Valeska obtained another conviction. Remarkably, in 1991, an appellate court—this time, the Alabama Court of Criminal Appeals—again overturned the conviction because of Valeska’s misconduct. On this occasion he improperly elicited evidence about the fact that Tomlin’s codefendant had been convicted and sent to death row—an echo of his brother’s prosecution of Jerry Hammond. The court likewise found that Valeska improperly commented on the defendant’s decision not to testify: “The comment on the appellant’s failure to testify was prejudicial and violated the appellant’s constitutional rights.” The court’s opinion further expressed concerns about the propriety of other acts Valeska undertook, including particular lines of questioning of witnesses.
Around the same time, the Court of Criminal Appeals reversed another conviction Valeska obtained because he had breached constitutional constraints. In the Chatom case, the court wrote that Valeska’s references to inadmissible offenses unrelated to the charged crime “denied” the defendant “a fair trial.”
Other parallels between the brothers’ modes of misconduct include their respective offices’ treatment of prospective minority jurors. Doug Valeska’s office’s routine exclusion of black jurors is well-chronicled in the above-mentioned report. Although Don’s history is less well-researched, the Court of Appeals’ opinion in the Chatom case suggested that he may have used peremptory strikes against jurors on the basis of their race. The court specifically noted that although it had granted the defendant a whole new trial on other grounds, “11 black jurors were in the venire and all 11 were struck by the prosecution.” Early in his career, Don also worked for the Mobile County District Attorney’s Office, a place with its own history of race discrimination in jury selection. At one evidentiary hearing pertaining to a Batson claim involving the office’s practices around and including the time that Valeska worked there:
several local criminal defense attorneys supported [the] motion, testifying that the Mobile County district attorney’s office had a pattern and practice of excluding blacks from jury service, particularly when the defendant in the case was black. The assistant district attorney who prosecuted Jones also testified; he denied the existence of any policy of racial exclusion and explained his use of peremptory strikes thusly: “I didn’t like the looks of those seven people and that’s why I struck them.”
As our earlier post about the dismissal of George Martin’s murder charges highlights, Don Valeska’s misconduct also extends to multiple cases in which he suppressed exculpatory evidence in violation of his Brady obligations. The evidence withheld from defendants was not tangential. Consider what the State kept from George Martin before his trial:
The suppressed evidence included information revealing that the only State witness who placed Martin in the vicinity of the crime scene actually identified someone else as the person he saw. James Taylor had told investigators that he had seen a “large” black man in a State trooper uniform in the area. Mr. Martin is 5’6” tall. Not only did Taylor never identify Martin specifically, but it turned out that when police showed him a photo lineup of African-American state troopers who worked in the region, Taylor identified a different trooper. Alabama’s Attorney General’s Office kept this evidence from Martin’s defense team.
There’s more. Prosecutors at trial ridiculed Martin’s claim that the fire was the result of an accident involving a gas can in the car. They pointed out repeatedly that the defense produced no evidence that there was a gas can found at the scene. They stated that none of the victim’s friends or family members had seen her carry a gas can in her car. Yet, post-conviction discovery revealed that the victim’s sister told police that she knew Hammoleketh Martin had carried a gas can in the vehicle.
In another case, Valeska directly misrepresented facts when the judge asked whether there was information that may have cleared Daniel Wade Moore. Upon learning that Valeska had lied, the court wrote: “When Assistant Attorney General Don Valeska . . . willfully defied this court’s orders they chose to defy justice.” At a retrial, Moore was acquitted.
While perhaps less complex and rich as a Dostoyevsky classic, one could imagine a book being written about the Brothers Valeska. For decades now they have been central players in the broken Alabama criminal justice system. Their ethical blunders span a range of actions that could fill the curriculum of a law school survey course covering various types of prosecutorial misconduct: improper comments about defendants and their rights; reliance on excluded and inadmissible evidence; racial discrimination in jury selection; and the suppression of exculpatory evidence. And, as former Alabama Attorney General Jeff Sessions—former supervisor of Don Valeska—comes under scrutiny during upcoming confirmation hearings, some of this professional misconduct will likely be dragged into the light. But one must wonder, if Sessions is confirmed, whether the records of the Brothers Valeska will in fact be rewarded by a system of political patronage that often elevates the most aggressive prosecutors into new and more powerful roles in government.