Many Falsely Imprisoned by Prosecutors

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Many Falsely Imprisoned by Prosecutors

Thursday June 26, 2003 8:29 AM

By MICHAEL J. SNIFFEN

Associated Press Writer

WASHINGTON (AP) - State and local prosecutors bent or broke the rules
to help put 32 innocent people in prison, some under death sentence,
since 1970, according to the first nationwide study of prosecutorial
misconduct.

Prosecutors misbehaved so badly in more than 2,000 cases during that
period that appellate judges dismissed criminal charges, reversed
convictions or reduced sentences, the study also found.

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 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 found 28 cases
involving 32 defendants in which judges concluded that misconduct by
prosecutors contributed to the convictions of innocent people.

These 32 were later exonerated, 12 of them by use of DNA genetic
evidence. Some of these innocent defendants had been convicted of
murder, rape or kidnaping; some had been under death sentence before
exoneration spared them.

In another 26 cases, 31 innocent defendants were convicted despite
their allegations of misconduct by prosecutors. But in those cases,
all subsequently exonerated, appellate judges dismissed the misconduct
allegations or ruled prosecutors committed ``harmless error.'' DNA
evidence exonerated 24 of them.

The report said convictions of an undetermined number of guilty
defendants also were undoubtedly overturned because of unfair
prosecutor tactics. Some of those defendants could not be retried and
were set free, so prosecutor misconduct ``has severe consequences for
the entire citizenry,'' the report said.

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.

``We eliminated more than 90 percent of all the criminal cases in the
United States that could harbor misconduct,'' because there was no way
to detect it, Weinberg said. But Washington University law professor
Katherine Goldwasser, a former prosecutor, said it was not safe to
assume that ``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 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 and ``obviously ... those convicted are
dissatisfied with the outcomes.''

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