Prosecutor Misconduct Probed in National Study

Judges have reversed convictions, dismissed charges or ordered new trials because of prosecutorial misconduct in more than 2,000 cases since 1970, according to a national study to be released today.

The misconduct includes making inflammatory comments in the presence of a jury, tampering with evidence, failing to disclose exculpatory evidence, threatening a witness and improper behavior during grand jury proceedings.

The study by the Center for Public Integrity in Washington found 223 prosecutors who had been cited for misconduct in judicial opinions two or more times. But the center only found one prosecutor who was disbarred for improper handling of a criminal case.

The center cited 28 cases, involving 32 defendants, in which misconduct by prosecutors led to the convictions of people who were later exonerated. A number of these came in death-penalty trials -- including cases in Alabama, Arizona, Illinois, Maryland and Texas -- that have previously come to light.

The study also said that some “guilty defendants” had their convictions overturned.

“Sometimes those defendants cannot be retried because of double-jeopardy rules, and are placed back on the street of the community. In other words, prosecutorial misconduct sometimes has severe consequences for the entire citizenry, not just a lone defendant,” the study said.

In total, the center reviewed 11,450 cases from 2,341 jurisdictions during a three-year study.

“This is the most extensive investigation into prosecutorial conduct that has been carried out in this country,” said Charles Lewis, executive director of the center, a nonprofit organization that has published numerous books and studies about misdeeds in government.

Judges overturned a conviction or took other corrective action in 2,017 of the cases.

In addition, “in thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed a trial to continue or upheld a convictions using a doctrine called ‘harmless error,’ ” the study found. In general, a finding of “harmless error” means a judge or panel of judges has concluded that something bad happened but that it did not have a material effect on the outcome of the trial.

“That was the biggest surprise to me -- the way ‘harmless error’ was stretched to cover a multitude of sins,” said Steve Weinberg, a University of Missouri journalism professor who directed the study.

The study was primarily based on appellate decisions in which allegations of prosecutorial misconduct had been raised by a defense lawyer. The study included cases from all 50 states but did not include federal cases.

Because more than 90% of criminal cases result in plea dispositions before trial, the amount of misconduct is, if anything, understated, said Weinberg. “It’s much harder to detect misconduct outside the courtroom where it is more invidious.”

Weinberg said the study may have missed some cases of misconduct because not all appellate decisions are published.

The center found 590 cases in California -- the nation’s most populous state with 34.5 million residents -- in which defendants had alleged prosecutorial misconduct since 1970.

In 75 cases, judges ruled that a prosecutor’s conduct unfairly prejudiced the defendant. One of these defendants established innocence, the study found. Texas, the nation’s second most populous state with 21.3 million residents, generated twice as many judicial rulings of misconduct -- 154. New York, the third largest state with 19 million residents, yielded nearly four times as many misconduct findings -- 277 -- the study found.

However, the study declined to make comparisons among states, and Weinberg cautioned against doing so. He said the outcomes depended on several variables, including how aggressive defense lawyers are in a particular state and how stringently a state’s judges view prosecutorial misconduct.

Astoria, Ore., District Attorney Josh Marquis, a spokesman for the National District Attorneys Assn., said that he had not yet fully reviewed the study. But he expressed comfort that there had been only eight instances in which Oregon appellate courts had found prosecutorial misconduct “out of thousands of appellate decisions since 1970.”

On the other hand, Marquis said he had serious doubts about whether the study had found all instances in which miscreant prosecutors had been disciplined. In particular, he said, the study missed his predecessor, “who was indicted, convicted, jailed and disbarred” after misusing a grand jury to indict two police officers on false charges that they had stolen drugs from an evidence locker.

The study found that since 1970, 33 prosecutors were disciplined by state bar disciplinary bodies for misconduct committed during a criminal case.

Among that group, one prosecutor was disbarred, one received probation, 11 had their licenses suspended -- including a San Diego prosecutor who was suspended in 1982 for five years -- and 20 received a public or private reprimand or censure.

Weinberg said those findings were based on the records of state disciplinary agencies and only involved instances of misconduct in a criminal case, not matters such as theft or other kinds of misbehavior.

He said he could not explain why the disbarment of Marquis’ predecessor had not turned up in the center’s research.

The study can be found at www.publicintegrity.org/pm.