COLUMN ONE : When the Prosecutor Is Guilty : A flurry of misconduct claims has raised concern about rogue government attorneys who break the rules to win convictions.


Early in the so-called Goldfish heroin case, Assistant U.S. Atty. Eric Swenson toasted his star witness, Wang Zong Xiao, at a banquet held by Chinese police in Shanghai. The moment was historic; the mood buoyant.

For the first time, the People’s Republic of China and the United States were working together to staunch the flow of narcotics from Asia. But Swenson, the federal prosecutor who would try the high-profile case in San Francisco, might just as well have raised a glass of brandy to his own failure.

After months of hearings, U.S. District Judge William H. Orrick ruled in October that Swenson illegally covered up important evidence that cast serious doubt on his case. The evidence indicated that before Xiao was flown to San Francisco to testify, Chinese detectives tortured him for days, obtaining statements that grew more incriminating with each poke of an electric cattle prod.

Just as devastating to the government’s case was Orrick’s other main conclusion: When Xiao created an international furor by revealing in court that he had been tortured, the prosecution illegally tried to deport him to China where, the judge believed, Xiao would have been executed.


Since then, the 51-year-old prosecutor has been on administrative leave pending the outcome of a Justice Department investigation. “The facts show such clear, flagrant and shameful constitutional violations that they shock the conscience of the court,” Orrick said in a 59-page ruling that blocked Xiao’s deportation and excoriated the government’s conduct.

Swenson and his colleagues are supposed to wear the white hats in the criminal justice system as the impartial seekers of truth and fairness--not just guilty verdicts.

Most federal and state prosecutors do just that.

But judging by a flurry of court rulings in recent years, unethical behavior by prosecutors is becoming a significant legal issue and a source of embarrassment for U.S. and district attorneys whose prosecutors have been hit with misconduct findings.


“This is one of the most disturbing developments in the last 20 years,” said Pace University law professor Bennett L. Gershman, a former state prosecutor in New York who has written extensively about the ethics of those entrusted with prosecuting crimes.

Undeterred by the courts or the threat of professional discipline, more and more advocates for the people have become the legal profession’s rogues, Gershman and other scholars say. Their botched prosecutions, they say, have squandered law enforcement resources, wasted millions of taxpayers’ dollars on cases that had to be retried, and threatened the constitutional right to a fair trial.

But prosecutors say that serious ethical breaches do not happen very often, and the rash of complaints is partly caused by defense attorneys more aggressively seeking tactical advantages.

“I don’t think our ethics have been reduced,” said San Diego County Chief Deputy Dist. Atty. Brian E. Michaels, a longtime member of the California District Attorneys Assn. ethics committee. “There may be more sensitivity to this today. That is why more of this is getting caught.”


Such unethical behavior is known as “prosecutorial misconduct.” It refers to any act that gives the government an unfair advantage in a criminal case or interferes with a defendant’s constitutional rights.

To keep the playing field level, the law demands that prosecutors be more than mere advocates for one side. Unlike the defense, they must reveal unfavorable aspects of their cases to opponents, especially evidence pointing to innocence.

As a landmark U.S. Supreme Court decision put it almost 60 years ago, the prosecution’s role “is not that it shall win a case, but that justice shall be done. . . . While (prosecutors) may strike hard blows, (they) are not at liberty to strike foul ones.”

Appeals courts have ruled that prosecutors cannot distort evidence or present false information, deliberately or inadvertently. Personal attacks on the defense in front of a jury are not allowed, nor is any tactic, like allusion to the Bible, that encourages jurors to decide cases on factors unrelated to the evidence.


Prosecutors can’t call the opposing lawyer a “slob” or the defendant “egg-sucking, chicken-killing gutter trash.” Judges have chided prosecutors for using such language within earshot of the jury.

Digressions from the rules are wide-ranging, and they can have various impacts on the outcome of a criminal case. For example:

* Two Orange County murder convictions, obtained during a costly three-week trial in 1991, were overturned last year because the prosecution withheld from the defense a witness’ statements that tended to exonerate the accused. In February, an appeals court cited the same deputy district attorney, Jeoffrey L. Robinson, for misconduct during the trial of a surgeon convicted of attacking actor John Wayne’s daughter. The verdict was reversed partly because of the prosecutor’s litany of improper suggestions to the jury that the defense attorney had fed them a pack of lies. Robinson, who has since gone into private practice, has denied any wrongdoing.

* In Bakersfield, an appeals court concluded in 1990 that it would “take literally hundreds of pages to list the misconduct” of Kern County Deputy Dist. Atty. Andrew Gindes, who prosecuted a complicated child molestation case involving seven victims. The court cited Gindes for personal attacks on the defense, improper questioning of witnesses and trying to get inadmissible evidence before the jury. The convictions of all five defendants, some of whom received 300-year sentences, were thrown out, and the case was never retried. Gindes, who is no longer with the district attorney’s office, could not be located for comment.


* The Los Angeles County Grand Jury concluded in 1990 that for years the district attorney’s office tolerated suspected perjury by jailhouse informants as a way to win cases, including murder trials. Often, deals made with informants in exchange for their testimony were concealed from judges or juries. Assistant Dist. Atty. Dan Murphy said the office disagreed with the grand jury’s findings. Although new safeguards were developed for using informants, he said, the office agreed to retrials in only a few cases.

* A former Imperial County deputy district attorney admitted having an affair with a key witness while prosecuting a much-publicized attempted murder case from El Centro. The witness was the girlfriend of one of the defendants. It was “a sordid little scenario,” state appeals court justices said in a decision. No convictions were reversed, because a lower court judge went to great lengths to uncover the transgressions before trial, enabling the defense to use the tryst to challenge the woman’s testimony.

Besides the court cases, a San Diego County Grand Jury is investigating the district attorney’s handling of a controversial child molestation case that ended in the acquittal of Dale Akiki last year. Dist. Atty. Ed Miller faces accusations that he filed charges at the behest of a prominent San Diego businessman who was related to one of the alleged victims.

In addition, his office has been accused of withholding evidence from the defense indicating that another person might have committed the crimes. The person was a convicted child molester and a co-worker of Akiki at a church day care center.


A spokesman for Miller said there were doubts that the other person was responsible for the crimes and that the district attorney decided to proceed with the case well before discussing the matter with the businessman.

Nationally, a spate of recent misconduct findings in several high-profile federal cases helped prompt U.S. Atty. Gen. Janet Reno to review Justice Department procedures for handling complaints about its lawyers. Although Reno defends the integrity of the government’s attorneys, she vowed to make the system more open and to add staff to handle a backlog of formal complaints.

She was reacting to increasing concerns raised by judges, defense lawyers and Congress about what they thought was misconduct by federal prosecutors, and a failure of the Justice Department to thoroughly investigate misconduct allegations.

In perhaps the most flagrant example to come to light, Justice Department lawyers were shown to have concealed evidence for 12 years that eventually exonerated John Demjanjuk, a retired Cleveland auto worker who had been found guilty in Israel of being “Ivan the Terrible,” a Nazi concentration camp guard.


The evidence, along with a memo warning of unethical behavior in the case, was never turned over to the defense or to Israeli prosecutors, who discovered its existence only after Demjanjuk was sentenced to death.

“From Idaho to Chicago to San Francisco these cases are popping up all over the country,” said U.S. District Judge James Ideman, who found that government attorneys had used a known perjurer to obtain a grand jury indictment in a Los Angeles racketeering case three years ago. “The thinking of some of us on the bench is perhaps this is a symptom of a Justice Department that is out of control.”

A computer count of published decisions by the state Supreme Court, state appeals courts and the U.S. 9th Circuit Court of Appeals indicates that prosecutorial misconduct has been raised as an issue on appeal more than ever since 1980.

In state courts, about 75% of appeals alleging misconduct over the last 50 years have been filed since 1980. The U.S. 9th Circuit addressed more cases from California containing misconduct allegations from 1991 to 1994 than in the entire previous decade. From 1980 to 1990, there were about 100; from 1991 to the present, about 140.


An electronic search could not determine how often allegations were sustained. But appeals court records show that convictions are upheld in the vast majority of cases that contain misconduct as at least one issue.

A national study of 400 people wrongfully convicted of death penalty offenses over the last 50 years found that about 15% to 20% of the cases involved unethical and illegal conduct by prosecutors, including subornation of perjury and mishandling evidence. Northeastern University in Massachusetts published the study in 1992.

State Bar of California officials say they have seen a slight increase in complaints against prosecutors, but they attribute the increase to a 1990 law requiring state courts to report attorney wrongdoing that results in reversals or judgments.

Similarly, the latest available statistics from the Justice Department show that the number of misconduct complaints rose from 95 in 1987 to 114 in 1990, a 20% increase. But the number dropped to 61 for the first nine months of 1991. Officials say the majority of complaints involve prosecutors.


Defense lawyers suspect that considerable misconduct, especially failure to disclose evidence favorable to the accused, goes undetected. What surfaces does so almost by accident or because of an anonymous tip.

Legal scholars blame the situation on many things, from overzealousness in a good cause to a win-at-all-costs attitude that, some veteran attorneys say, is more prevalent than it was 20 years ago.

High on the list of explanations is an arrogance resulting from the enormous power Congress and state governments have bestowed on prosecutors since the 1970s to fight drug trafficking and white-collar crime.

That has coincided with attempts by the federal government to exempt its prosecutors from state rules of professional conduct, and court decisions that have upheld laws protecting prosecutors from civil lawsuits for certain types of unethical behavior.


All of this, said Pace University’s Gershman, has created a special class of attorney, often immune from professional discipline or liability except in the most heinous cases.

In many cases, appeals courts have found serious misconduct, but have been hesitant to overturn the verdicts because the evidence appears strong enough to support a conviction. Such situations are known as “harmless error.” Some say it has created an incentive for prosecutors to push the envelope of acceptable behavior.

“If you can win cases with misconduct, why not take the chance of losing on appeal once in a while,” said Santa Ana defense lawyer William J. Kopeny, who estimates that about 40% of his appeals involve misconduct allegations.

Of 15 state and federal prosecutors found by California trial judges and appeals courts to have committed serious misconduct since 1980, nine have come under investigation by the State Bar. Two cases remain open. Six did not result in any discipline serious enough to be disclosed to the public, although the Bar can privately warn attorneys, put them on informal probation or require them to take ethics courses.


The only one publicly disciplined was former San Diego County Deputy Dist. Atty. L. Forrest Price, who received a two-year suspension in 1982. Price altered taxi records to make it appear that a driver had dropped off the accused in the area where two murders occurred. He tried to cover up his actions by offering the defendant a lower sentence if he would drop his appeal.

State Bar officials recommended that Price be disbarred, but state Supreme Court justices decided to suspend him, noting that he had been under stress from working long hours for several years.

“Because of the enormous power of prosecutors, the State Bar should have its antenna out for prosecutorial misconduct--but I don’t think it does,” said Robert C. Fellmeth, a professor at the University of San Diego Law School, who led the effort to reform attorney discipline in California. “I would like a system where if attorneys lied, something would happen to them.”

Prosecutors and State Bar officials say the Price case, and recent court findings of misconduct, show that the system works well in ferreting out unethical behavior.


The critics “ignore the penalties that occur when serious misconduct is found,” said Michaels of the San Diego County district attorney’s office. “I have seen severe sanctions imposed. There are cases where prosecutors have been terminated. If you ever wanted to be a judge, kiss your application goodby.”

Prosecutors across the state also say that much has been done in the last 20 years to ensure that convictions are obtained fairly. Ethics courses are required each year, and manuals and hot lines have been made available by the California District Attorney’s Assn.

Three years ago, the Los Angeles County district attorney’s office created a professional responsibility unit to hold ethics seminars and advise deputy district attorneys. As the only office of its kind in the state, it has turned into a resource for prosecutors across California.

“Today, we have ethics courses, better training and a vastly improved disciplinary system,” said Robert P. Heflin, the chief trial counsel for the State Bar of California. “Twenty-five years ago when I started practicing law, this stuff was not going on.”


Yet some law professors and leaders in the defense bar believe that more needs to be done. Some say that prosecutors need better training, and the power to discipline prosecutors should be removed from state bar associations and given to an independent agency that would work like a police review board, or the state commissions that investigate misconduct by judges.

“There ought to be a national summit conference on this,” said John Henry Hingson III, an Oregon attorney who is president of the National Assn. of Criminal Defense Lawyers. “We have been shouting at each other for too long. There is distrust on both sides.”