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Print StorySometimes the consequences are severe. In 28 cases, involving 32 separate defendants, misconduct by prosecutors led to the conviction of innocent individuals who were later exonerated, the Center found. Innocent men and women were convicted of serious charges, including murder, rape and kidnapping and assault.
Guilty defendants have also had their convictions overturned. Sometimes those defendants cannot be retried because of double jeopardy rules and are placed back on the streets of the community.
A team of 21 researchers, writers and editors analyzed 11,452 cases in which charges of prosecutorial misconduct were reviewed by appellate court judges. In the majority of cases, the allegation of misconduct was ruled harmless error or was not addressed by the appellate judges, and the conviction stood.
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Because of the relative rarity of reversals, any prosecutor who has more than one reversal to his or her credit belongs to a select club. These prosecutors give recidivism—a word usually used to describe those they work to put behind bars—a disturbing new meaning.
In Cuyahoga County, Ohio, Carmen Marino, who served for 30 years as a prosecutor before retiring in 2002, won five convictions that were overturned by the Ohio appellate courts. Appellate judges have ruled that Montgomery County, Ala., District Attorney Ellen Brooks' discriminatory tactics deprived defendants of fair trials four times since she began prosecuting in 1977. Former Hinds County, Miss., District Attorney Edward Peters was involved in six cases in which judges ruled that his conduct prejudiced a defendant.
Center researchers compiled state-by-state summaries, tracking misconduct across the nation:
- Of the 523 cases in which Pennsylvania defendants alleged misconduct, 287 were in Philadelphia. Judges reversed or remanded the conviction, sentence or indictment in 41 cases tried in the City of Brotherly Love.
- In 35 of the 120 North Carolina appeals which Center researchers studied, defendants pointed to Biblical references made by prosecutors as grounds for reversal.
- Appellate judges in Alabama cited discrimination in jury selection in 45 percent of the convictions they reversed.
- The Hennepin County District Attorney's office, which covers the
Minneapolis area, was responsible for 88 of the 240 Minnesota criminal cases
in which defendants alleged misconduct on appeal. In 12 of the cases, judges
reversed or remanded the conviction, sentence or indictment because of the
prosecutor's conduct.
The study also tracks the influence that the top prosecutor in a jurisdiction, elected in some, appointed in others, can have on an office. Since 1990—the year Walworth County, Wis., District Attorney Phillip Koss was elected to office—there have been at least 27 appellate decisions addressing alleged prosecutorial error. In the 20 years before that, there were three. In 12 of those 27 cases, judges ruled that the prosecutor's conduct required reversing the defendant's conviction.
In San Diego, the office of district attorney has been held by prosecutors who have attempted to make the office more accountable. Yet appellate judges ruled on allegations of prosecutorial error or misconduct allegations in 45 San Diego County cases, of which 8 led to reversals, dismissals or acquittals. Of the 2,341 jurisdictions the Center researched, San Diego stood out for the attempts its top prosecutors made to do things differently. Perhaps a reflection of their success lies in the fact that the citizenry of San Diego County became so educated about prosecutorial misconduct that when it did occur, they were ready to hold the district attorney responsible and vote him out of office, no matter his accomplishments or intentions.
Front line prosecutors
In most jurisdictions, at least 95 percent of the cases that pour in from the police never reach a jury, which means any misconduct occurs away from public view. The only trial those defendants receive takes place in the prosecutor's office; the prosecutor becomes the judge and the jury. The prosecutor is the de facto law after an arrest, deciding whether to charge the suspect with committing a crime, what charge to file from a range of possibilities, whether to offer a pre-trial deal, and, if so, the terms of the deal.
The Center's investigation tracked career prosecutors, and found some who repeatedly broke the rules:
- The Wisconsin Court of Appeals has addressed Walworth County Assistant District Attorney Diane Resch's conduct at least ten times. In half of those appeals, judges ruled that her conduct warranted reversing the defendant's conviction. Three of those reversals, which included various constitutional violations, were child sex abuse cases.
- Missouri judges cited Nels C. Moss Jr,. a St. Louis prosecutor, for misconduct in at least 24 cases, yet Moss never faced a disciplinary action during the more than three decades he has been a prosecutor. Over the course of his career, Moss failed to turn over potentially exculpatory evidence to the defense before trial; reneged during trial on a pre-trial stipulation with the defense; called the jury's attention to the defendant's failure to testify, thereby compromising the Fifth Amendment rights of the accused; alluded to the defendant's prior criminal record, a violation of the rules of evidence; attacked the character of the defendant with information not in the court record; used inadmissible material from a separate trial of an accomplice; promised during jury selection or opening argument to present testimony never offered; attacked the truthfulness of defense counsel; cast aspersions on the integrity of an insanity defense; and inflamed jurors' passions during closing argument.
- The repeated offenses of John Zimmermann, a Nashville prosecutor, led his colleagues, including former state attorneys general and U.S. attorneys, to document his misconduct in a brief submitted to the U.S. Supreme Court last year on behalf of a death row inmate, Abu-Ali Abdur'Rahman, whom Zimmermann had convicted.
Center researchers studied the conduct of local prosecutors, trying to understand their actions within the context of a very difficult job. They analyzed every accessible state appellate court opinion, trial court ruling and state bar disciplinary filing back to 1970 addressing allegations of prosecutorial misconduct. Researchers supplemented these findings with additional cases not reported in court records but available through media accounts or learned of through interviews and correspondence with journalists, inmates, defense lawyers, state bar disciplinary counsel, judges and other sources.
The case citations are available in a searchable, online database, along with
summaries tracking misconduct in each of the 50 states.
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