And now:Ish <[EMAIL PROTECTED]> writes:
The verdict: Dishonor
By Ken Armstrong and Maurice Possley
Tribune Staff Writers
With impunity, prosecutors across the country have violated their oaths and
the law, committing the worst kinds of deception in the most serious of cases.
They have prosecuted black men, hiding evidence the real killers were white.
They have prosecuted a wife, hiding evidence her husband committed suicide.
They have prosecuted parents, hiding evidence their daughter was killed by
wild dogs.
They do it to win.
They do it because they won't get punished.
They have done it to defendants who came within hours of being executed, only
to be exonerated.
In the first study of its kind, a Chicago Tribune analysis of thousands of
court records, appellate rulings and lawyer disciplinary records from across
the United States has found:
- Since a 1963 U.S. Supreme Court ruling designed to curb misconduct by
prosecutors, at least 381 defendants nationally have had a homicide conviction
thrown out because prosecutors concealed evidence suggesting innocence or
presented evidence they knew to be false. Of all the ways that prosecutors can
cheat, those two are considered the worst by the courts. And that number
represents only a fraction of how often such cheating occurs.
- The U.S. Supreme Court has declared such misconduct by prosecutors to be so
reprehensible that it warrants criminal charges and disbarment. But not one of
those prosecutors was convicted of a crime. Not one was barred from practicing
law. Instead, many saw their careers advance, becoming judges or district
attorneys. One became a congressman.
- Of the 381 defendants, 67 had been sentenced to death. They include Verneal
Jimerson of Illinois and Kirk Bloodsworth of Maryland, both later exonerated
by DNA tests; Randall Dale Adams of Texas, whose wrongful conviction was
revealed by the documentary "The Thin Blue Line;" and Sonia Jacobs of Florida,
who was eventually freed but whose boyfriend, convicted on virtually identical
evidence, had already been executed by the time her appeal prevailed.
- Nearly 30 of those 67 Death Row inmates -- or about half of those whose
cases have been resolved -- were subsequently freed. But almost all first
spent at least five years in prison. One served 26 years before his conviction
was reversed and the charges dropped.
- Illinois' record for misconduct by prosecutors is particularly abysmal. Of
the 381 people whose homicide convictions were reversed, 46 were tried in
Illinois. That's the second-highest total and twice as many as the state that
ranks third. Only New York state, which is more populous, has more cases, and
its total can be partly attributed to a special rule that loosens the
requirements for a conviction's reversal.
The failure of prosecutors to obey the demands of justice--and the legal
system's failure to hold them accountable for it--leads to wrongful
convictions, and retrials and appeals that cost taxpayers millions of dollars.
It also fosters a corrosive distrust in a branch of government that America
holds up as a standard to the world.
Next week, three former DuPage County prosecutors will face trial on charges
of conspiring to frame Rolando Cruz, who served about 10 years on Death Row
before being acquitted at his third trial on charges of murdering 10-year-old
Jeanine Nicarico. The case is exceptionally rare -- not because prosecutors
have been accused of concealing evidence and knowingly using false evidence,
but because they have been indicted for it.
If convicted of a felony for such misconduct, it would be the first time that
has happened in the United States.
Prosecutors, who are the criminal justice system's gatekeepers, hold powers
and responsibilities unique in American society. The decisions they make can
determine who avoids or stands trial, who is convicted or acquitted, who lives
or dies. They must protect society from criminals while upholding the justice
system's integrity. They are supposed to avoid underhanded tactics that can
help put away the guilty but threaten to convict the innocent.
Many prosecutors follow the rules and honor their obligations. Even while
sifting through the wreckage of one horrific crime after another, they avoid
crossing the line that separates the vigorous prosecutor from the overzealous
one--or if they do, their trespasses are brief, usually a flip comment or ill-
advised question made in the heat of courtroom battle.
"I believe the great majority of prosecutors in this country are truly
dedicated to doing their jobs in the proper fashion," said John Justice,
president of the National District Attorneys Association and a South Carolina
prosecutor.
But the kind of deliberate misconduct that contributed to those 381
defendants' homicide convictions is so grave that courts believe it should
never occur. And although prosecutors often downplay individual cases
involving such deceit as aberrations, the body of cases turned up by the
Tribune's search reveals that it happens frequently and in nearly limitless
ways.
Prosecutors have concealed evidence that discredited their star witnesses,
pointed to other suspects or supported a defendant's claim of self-defense.
They have suppressed evidence that a murder occurred when the defendants had
alibis, or that it occurred not in a defendant's home, as alleged, but in
someone else's cornfield far away. In one case prosecutors depicted red paint
as blood. In another they portrayed hog blood as human.
In upstate New York, prosecutors won convictions against two African-American
men, Sammy Thomas and his brother Willie Gene, while keeping secret an
eyewitness statement from the victim's brother, who told police the killers
were white. Willie Gene was retried and acquitted in 1980. The charges were
then dropped against his brother. The prosecutor, Peter Corning, became a
judge.
In South Bend, Ind., Zollie Arline was convicted in 1972 of manslaughter.
Arline claimed self-defense, saying he clubbed James Patton with a 2-by-4
after Patton cut him with a knife. Police gave the knife to the prosecutor,
but he not only hid it from the defense, he exaggerated its absence at trial.
"Did you see any knives?" he asked one witness after another, always getting
"no" for an answer. Arline's conviction was reversed because of the
prosecutor's deception, and the charges against him were dropped.
Prosecutors in South Carolina and Arizona did the same thing in cases where
self-defense was alleged, hiding a victim's knife and then arguing there was
no knife. A Colorado prosecutor hid the victim's gun and then argued there was
no gun. A Downstate Illinois prosecutor hid a piece of pipe and then argued
there was no pipe. Each time, the defendant's conviction was thrown out.
In 1998 alone, at least three people were freed after being retried because
prosecutors had concealed evidence. In Texas, prosecutors didn't disclose that
a blood-spatter expert had supported Susie Mowbray's claim that her husband
shot himself. She was acquitted at retrial. In Louisiana, prosecutors withheld
evidence suggesting a police informant had framed Curtis Kyles. At retrial,
the jury deadlocked and Kyles was freed. In New Jersey, prosecutors concealed
evidence indicating the killer was their chief witness -- and not Vincent
Landano, the defendant. At a new trial, Landano was acquitted.
Because of its focus on homicide cases -- which are usually prosecuted in
state courts--the Tribune study uncovered only a few reversed federal
convictions. Almost all of them occurred in Illinois, where 13 El Rukn gang
members received new trials after being convicted in a wide-ranging murder and
narcotics conspiracy prosecution.
Although the Tribune found 381 defendants whose homicide convictions were
overturned based upon such misconduct, that number accounts for only a
fraction of how often prosecutors commit such deception -- which is by design
hidden and can take extraordinary efforts to uncover. No one knows how often
prosecutors engage in such duplicity but aren't caught. And even when
prosecutors are caught, findings of misconduct aren't filed in an easily
accessible directory. The legal system keeps track of convictions won, not
convictions lost on appeal because prosecutors went too far.
In a 1963 case, Brady v. Maryland, the U.S. Supreme Court ruled that
prosecutors must disclose evidence favorable to a defendant. But even when
prosecutors are caught hiding evidence, courts will reverse a conviction only
if the evidence was so strong that its disclosure would have created a
"reasonable probability" of a different verdict. Courts use a similar
threshold in cases where prosecutors presented evidence they knew to be false.
The result is that courts frequently uphold a conviction even when prosecutors
suppress evidence or allow witnesses to lie, ruling that the prosecutor's
actions, while reprehensible, probably did not change the trial's outcome.
And catching prosecutors who have engaged in such deception can be extremely
difficult.
In the case of James Richardson, a Florida man wrongly convicted in the
poisoning deaths of his seven children, certain evidence undermining the
state's case surfaced only after being stolen from a prosecutor's office by a
man dating the prosecutor's secretary. Richardson was set free in 1989 after
serving 21 years.
Evidence has surfaced in other cases only after a judge directed the U.S.
marshal to seize the prosecutors' documents, or because newspapers sued under
the Freedom of Information Act, or because of anonymous tips, conversations
accidentally overheard or papers spied in a prosecutor's hand.
-+-
Striking 'foul' blows
In 1935, U.S. Supreme Court Justice George Sutherland described the
prosecutor's role with words quoted hundreds of times since then. As the
lawyer for the people, Sutherland wrote, the prosecutor's job is twofold:
"that guilt shall not escape or innocence suffer."
"(W)hile he may strike hard blows," Sutherland wrote of prosecutors, "he is
not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one."
Even guilty defendants must receive a fair trial, the courts say. Otherwise,
the integrity of the criminal justice system suffers.
Dozens of rules constrain prosecutors. The prohibitions against suppressing
evidence or knowingly using false evidence are only two of them.
Courts have established rules of a fair trial that cover everything from how
prosecutors secure an indictment to what they can say during a trial's closing
argument. Prosecutors commit misconduct when they break those rules, whether
it's discriminating against blacks during jury selection, engaging in personal
attacks on defense attorneys, destroying a witness' credibility with questions
containing false allegations or suggesting jurors should infer guilt because a
defendant didn't testify.
History offers examples of prosecutors who exemplified Sutherland's ideal by
righting wrongs instead of covering them up.
Homer Cummings, a Connecticut prosecutor who later served as U.S. attorney
general, won acclaim in the 1920s for withstanding the public clamor for
revenge in the wake of a priest's murder. Convinced a defendant's confession
had been coerced, he demonstrated the man's innocence instead of using
questionable evidence to convict him.
In the 1980s, Michael Falconer, a Lake County prosecutor, provoked outrage
from Cook County prosecutors by stepping forward with evidence that undermined
their case against two men who had been sentenced to death. Both were
ultimately acquitted after new trials.
But in the hundreds of cases found by the Tribune, prosecutors went in the
other direction from Cummings and Falconer, showing a disrespect for the law
that is typically associated with criminals, not the men and women who
prosecute them.
Ask judges, defense attorneys, prosecutors and legal scholars why prosecutors
cheat, and they often answer with two simple words: To win.
"Winning has become more important than doing justice. Nobody runs for the
Senate saying I did justice," says Harvard University law professor Alan
Dershowitz, a longtime critic of prosecutors.
The drive to win is fueled by a variety of factors, including the satisfaction
of putting away a dangerous criminal, pleasing the public, and providing
justice for victims or their survivors. Prosecutors also fear allowing a
guilty defendant to go free and losing the esteem and confidence of
colleagues.
Then there is the knowledge that prosecutors rarely get punished, even if
their conduct is outrageous.
A dramatic example is provided by the 381 homicide defendants who received new
trials because prosecutors hid evidence or allowed witnesses to lie. The
appellate courts denounced the prosecutors' actions with words like
"unforgivable," "intolerable," "beyond reprehension," and "illegal, improper
and dishonest." At least a dozen of the prosecutors were investigated by state
agencies charged with policing lawyers for misconduct.
But so far, here is what has happened to the prosecutors in those hundreds of
cases: One was fired, but appealed and was reinstated with back pay. Another
received an in-house suspension of 30 days. A third prosecutor's law license
was suspended for 59 days, but because of other misconduct in the case.
Not one received any kind of public sanction from a state lawyer disciplinary
agency or was convicted of any crime for hiding evidence or presenting false
evidence, the Tribune found. Two were indicted, but the charges were dismissed
before trial.
It is impossible to say whether any of the prosecutors received any
professional discipline at all, because most states allow agencies to
discipline lawyers privately if the punishment is a low-grade sanction like an
admonition or reprimand. It is also impossible to say precisely how many
prosecutors were investigated and cleared, because investigations that don't
end in disciplinary action often remain confidential.
The U.S. Supreme Court itself has contributed to the fiction that prosecutors
who strike foul blows will suffer meaningful consequences. In 1976, the court
granted prosecutors immunity from lawsuits even if they conceal evidence or
knowingly use false evidence, saying sufficient checks already existed --
disbarment and criminal prosecution.
However, a Tribune search failed to turn up a single prosecutor who was
disbarred for securing a conviction while engaging in such misconduct in any
kind of criminal case. And it found only two cases where prosecutors were
convicted of criminal charges for such misconduct. Both of those convictions,
one in an Ohio rape case and the other in a New York robbery case, were
misdemeanors that resulted in $500 fines.
Instead, the prosecutor's career advances. In Georgia, George "Buddy" Darden
became a congressman after a court concluded that he withheld evidence in a
case where seven men, later exonerated, were convicted of murder and one was
sentenced to death. In New Mexico, Virginia Ferrara failed to disclose
evidence of another suspect in a murder case. By the time the conviction was
reversed she had become chief disciplinary counsel for the New Mexico agency
that polices lawyers for misconduct.
Bennett Gershman, a law professor at Pace University in White Plains, N.Y.,
has written extensively about misconduct by prosecutors and calls it a
"serious cancer in our system of justice."
"There is no check on prosecutorial misconduct except for the prosecutor's own
attitudes and beliefs and inner morality," he said.
In New Orleans, where prosecutors have been condemned repeatedly for
withholding evidence, Orleans Parish Judge Calvin Johnson has also found that
prosecutors don't pay in any meaningful way for such misconduct. But in his
courtroom at least, he has tried to change that.
He has held prosecutors in contempt. He has ordered them to take law classes.
He has thrown out three murder convictions this decade. And last year, he sent
a letter to New Orleans District Atty. Harry Connick, threatening to report
Connick's assistants to the state's lawyer disciplinary agency the next time
he caught them withholding evidence.
"From (Connick's) perspective, bad guys are bad guys and whatever we need to
do to put them away is OK," Johnson said recently. "But the problem is, every
now and then, it's not a bad guy. Every now and then, you've got the wrong
guy."
In 1979, Isaac Knapper was accused by Connick's office of murdering a tourist.
He was convicted, but more than a decade later the Louisiana Supreme Court
reversed his conviction because prosecutors didn't disclose a police report
undercutting their case. The report documented the arrests of three men for a
different robbery five blocks away using the same gun that killed the tourist.
After his conviction was reversed in 1991, Knapper was not retried. He was 16
when arrested, a gifted amateur boxer working to become a professional. He was
29 when freed. The years in between were spent at the penitentiary in Angola,
one of the country's toughest prisons. After being freed, Knapper boxed
professionally for awhile, but his best years were behind him. He now owns a
liquor store in New Orleans.
"They wanted to get a conviction, they wanted to clear the books," he said
recently. "They railroaded me."
Laurie White, the defense attorney who won Knapper's appeal, used to work for
Connick but now refers to prosecutors as "those lying, cheating bastards." She
has won new trials for five clients -- four convicted of murder, one of rape
-- by showing that prosecutors suppressed evidence. In another case, a judge
quashed a murder indictment because prosecutors withheld evidence.
White said she regularly uncovers evidence that prosecutors should have
disclosed. "Now is it knowing and intelligent, or because they're stupid and
unprepared? I don't know."
Connick, the father of singer Harry Connick Jr., has been district attorney
since 1974. He said his prosecutors labor under difficult circumstances where
mistakes can happen. Many are inexperienced. Turnover is rampant. He has 80
prosecutors, and this year, 30 are new. Next year, 30 more will be new. His
prosecutors average 30 jury trials year -- a daunting caseload -- and they can
find it difficult to keep track of what evidence has been disclosed in every
case they handle, Connick said.
But, Connick said, he believes his prosecutors "follow the rules in 99.9
percent of the cases."
John Justice, the National District Attorneys Association president, noted
that prosecutors are answerable to the public.
"Most of us are elected officials, and the final sanction is when people vote
every two, four or six years," he said. "They can vote us out of office."
But voters don't always know about misconduct by prosecutors. In their written
opinions, appeals courts rarely name prosecutors, even those found to have
acted abominably. And many states publish only a fraction of their appellate
opinions in law libraries or electronic databases. Wrongdoing by prosecutors
remains largely undetectable, with puzzle pieces scattered in warehoused trial
transcripts and in court rulings that are hard to find or connect.
And even if the public does know about an individual prosecutor's misconduct,
that doesn't mean voters will repudiate him.
-+-
A victim fights back
When Ray Whitley ran for re-election last year as the chief prosecutor in
Sumner County, Tenn., Robert Spurlock spent months working for Whitley's
opponent--making signs, handing out fliers and sharing his story with all who
would listen.
Spurlock, a 32-year -old mechanic, served more than four years in prison for a
crime he didn't commit. He holds Whitley responsible. So did the Tennessee
Court of Criminal Appeals.
Spurlock and Ronnie Marshall were convicted in 1990 of murdering a man and
dumping him in a drainage ditch. But the appeals court reversed the
convictions and lambasted Whitley, saying he concealed evidence that pointed
to other suspects and discredited his star witness. He also allowed witnesses
to lie, the court ruled.
The star witness, Henry "Skully" Apple, testified that he was with Spurlock
and Marshall on the night of the murder. He told a story of hearing screams in
the distance, then seeing Spurlock spattered with blood.
Apple denied he had been promised an early release from jail on an unrelated
crime in exchange for testifying against Spurlock. A sheriff's deputy also
testified that no such promise was made. But both those witnesses lied, the
appeals court ruled, and Whitley knew they were lying.
Police had taped the jailhouse interviews with Apple, and those tapes not only
verified the promise, they undermined other aspects of Apple's testimony as
well, the court said. But Whitley failed to disclose those tapes, the court
ruled.
After receiving new trials, Spurlock and Marshall were convicted again. But in
1996, they were freed after newly discovered evidence implicated the real
killer, who later pleaded guilty.
The state's lawyer disciplinary agency investigated Whitley but cleared him of
wrongdoing. Rick Halprin, a Chicago attorney representing Spurlock, called the
investigation a "whitewash" and an "outrage."
Voters also approved of Whitley's work. Despite Spurlock's campaign efforts,
residents re-elected Whitley in August with 58 percent of the vote.
Whitley and his attorney declined comment about the case, citing a pending
lawsuit filed by Spurlock and Marshall, who hope to find a way around the
prosecutorial immunity barrier or to convince the courts to dismantle it. But
in court documents, Whitley has denied concealing evidence or allowing
witnesses to lie.
Spurlock would like to see the tables turned on Whitley.
Said Spurlock: "I want to get him sitting behind those bars for awhile."
Tribune researcher Judith Marriott contributed to this report.
Copyright Chicago Tribune (c) 1999
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Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
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