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Study exposes misconduct by state, local prosecutors

WASHINGTON — State and local prosecutors stretched, bent or broke rules so badly in more than 2,000 cases since 1970 that appellate judges dismissed criminal charges, reversed convictions or reduced sentences, according to the first national study of prosecutorial misconduct.

The study, "Harmful Error," found 223 prosecutors around the nation who had been cited by judges for two or more cases of unfair conduct but only two prosecutors who had been disbarred in the past 33 years for mishandling of criminal cases. There are about 30,000 local prosecutors in 2,341 jurisdictions.

A product of three years of research by The Center for Public Integrity, a private ethics watchdog group, the study also found 28 cases involving 32 defendants in which judges concluded that misconduct by prosecutors contributed to the convictions of innocent people who were later exonerated. Some of these innocent defendants had been convicted of murder, rape or kidnaping; some had been sentenced to die before exoneration spared them.

Charles Lewis, executive director of the center, said that by focusing only on cases in which appellate judges found misconduct the study presented "an extremely conservative and undoubtedly understated picture of the problem." The study also excluded federal prosecutors.

Astoria, Ore., District Attorney Joshua Marquis, a National District Attorneys Association board member, said the cases that were cited emerged "from a universe of millions." The results suggested that the problem was "episodic, not epidemic" and that prosecutors "are and should be subject to a high degree of scrutiny by trial and appellate judges, defendants and defense lawyers, the press and bar associations and ultimately the voters," Marquis added.

Project director Steve Weinberg, a University of Missouri journalism professor on leave, said researchers found and analyzed 11,458 appellate rulings in which prosecutor misconduct was raised as an issue.

In 2,017 cases, appellate judges found misconduct serious enough to order dismissal of charges, reversal of convictions or reduction of sentences. In an additional 513 cases, at least one judge filing a separate concurring or dissenting opinion thought the misconduct warranted reversal.

In thousands more cases, judges labeled prosecutorial behavior inappropriate but characterized it as "harmless error" and allowed a conviction to stand or a trial to continue.

"We are really talking about misconduct in the cases that went to trial," Weinberg told a news conference, noting that nationally 95 percent of defendants who are charged never go to trial. A majority plead guilty without a trial; some charges are dropped by prosecutors.

"We eliminated more than 90 percent of all the criminal cases in the United States that could harbor misconduct," Weinberg said, because "it's much harder to detect misconduct outside the courtroom, where it's more invidious."

In many of these cases, the report said, "the prosecutor becomes the judge and the jury" deciding whether to charge, which charges to bring and what terms to offer in return for a pretrial guilty plea. "Usually there is no public record," Weinberg said.

Washington University law professor Katherine Goldwasser, a former prosecutor, told the researchers, "It is not a safe assumption that cases ending with guilty pleas are absent prosecutorial misconduct."

The study found the following types of misconduct:

Making inappropriate or inflammatory comments in front of the jury.

Introducing or trying to introduce inadmissible or inflammatory evidence.

Mischaracterizing evidence or facts to the court or jury.

Excluding jurors on the basis of race, ethnicity, gender or other discriminatory grounds.

Making improper closing arguments.

Hiding, destroying or tampering with evidence, case files or court records.

Failing to disclose exculpatory evidence.

Threatening, badgering or tampering with witnesses.

Using false or misleading evidence.

Harassing, displaying bias toward or having a vendetta against a defendant or defense lawyer, including denial of speedy trial and selective or vindictive prosecution.

Improper behavior during grand jury proceedings.

Among prosecutors repeatedly cited by appellate judges were:

Nels C. Moss Jr., assistant circuit attorney in St. Louis and later trial prosecutor in neighboring St. Charles County in Missouri. In 33 years of trying cases, Moss' conduct was formally challenged on appeal in 25 cases. In eight cases, judges reversed convictions, declared a mistrial or issued some other ruling against the prosecution. In 17 other cases, judges found Moss committed prosecutorial error but affirmed a conviction or allowed a trial to continue.

Moss told researchers he was "a hard-hitting but honest prosecutor" who tried more than 400 cases, many of them high-profile affairs, and "obviously ... those convicted are dissatisfied with the outcomes."

— Carmen Marino, a prosecutor for 30 years in Cuyahoga County, Ohio, who had five convictions overturned by the Ohio Supreme Court.

— Dallas County, Texas, prosecutor Robert E. Whaley, who had six defendants' convictions reversed between 1974 and 1982.

— Hinds County, Miss., District Attorney Edward Peters, who was involved in six cases in which judges ruled his conduct prejudiced defendants.

— Nashville, Tenn., trial prosecutor John Zimmerman. Six former Tennessee prosecutors filed a friend-of-the-court brief to the U.S. Supreme Court in July 2002 on behalf of death row defendant Abu-Ali Abdur'Rahman citing Zimmerman's misconduct in the case, which the state Supreme Court had held was harmless error.

"The most surprising thing I learned was how much 'harmless error' can be stretched to uphold a conviction," Weinberg said.

Those prosecutors who were disciplined usually received only a reprimand or one or two months' suspension, he said. "We found many jurisdictions where prosecutors have bent the rules for year after year, but no one in the prosecutor's office pays the price. The defendants pay the price."


On the Net: The Center for Public Integrity: www.publicintegrity.org/dtaweb/home.asp