When Innocence Gets Short Shrift

As the public clamors for tougher treatment of criminals, the federal crime bill attaches the death penalty to 52 offenses, and avenues of appeal are being choked off. Yet illegal conduct by prosecutors in numerous capital cases raises alarms about protecting rights of the accused. Second in a series of articles.

IN 1982, Ricardo Aldape Guerra was sentenced to die for killing a Houston police officer.

Eleven years later at an appeals hearing in a federal courtroom, the defendant's new lawyer pried open the state's case to reveal a disturbing layer of improper police procedures, evidence withheld, witness coercion, and knowing use of false testimony.

Increasingly dismayed at what he was hearing, Judge Kenneth Hoyt began to direct provocative questions at Richard Bax, one of the prosecutors in the case.

Riled, Mr. Bax lashed back at the federal judge: "I resent anyone telling me that I had somehow conspired to get an innocent person the death penalty."

Indeed, such an act would be "morally reprehensible ... one of the worst things you can do," says Laurie Levenson, a former federal prosecutor who teaches criminal law and ethics at Loyola Law School in Los Angeles. Prosecutors swear to uphold the United States Constitution, which directs them to seek the truth, not stack the deck.

Nonetheless, examples abound of various types of prosecutorial misconduct in capital cases. Though illegal, such misconduct is rarely punished. It may not be discovered for years, if ever. Its persistence is especially dangerous, defense attorneys say, at a time when more categories of crime are being deemed punishable by death and more avenues of appeal are being choked.

Hoyt's conclusions in Mr. Aldape Guerra's case are shocking but not unusual: "The police officers and prosecutors had a duty to accurately Overzealous Prosecutors Taint Justice

record the statements of the witnesses, to fairly investigate the case, and to disclose all exculpatory evidence. Moreover, they had a duty to not prosecute an innocent man. They failed in these duties."

"The police officers' and the prosecutors' actions described in these findings were intentional, were done in bad faith, and are outrageous," the judge continued. "These men and women, sworn to uphold the law, abandoned their charge... Their misconduct was designed and calculated to obtain a conviction and another 'notch in their guns'...." Last November, Hoyt ordered the state to free Aldape Guerra or grant him a new trial.

"Baloney," Mr. Bax remarked to a Houston newspaper. Now in private practice, Bax did not answer the Monitor's invitation to respond to Hoyt's criticisms. Meanwhile, Aldape Guerra languishes in prison while legal maneuvering in his case creeps onward.

Prevalence of misconduct

The notion of prosecutors intentionally breaking the law to win a capital case might alarm minorities and the poor in particular, since they are the usual defendants in capital cases.

Sympathy for the unjustly accused often fizzles if the defendant has a criminal record, was peripherally involved in the crime, or runs with the wrong crowd. Florida defense attorney Michael Mello says the public's attitude in such cases is "well, maybe he didn't commit this crime, but he's guilty of something."

Some death-row inmates later proved innocent had none of these traits. They were all but plucked from the street at random.

"The next person up could be anybody's son or anybody's brother," says Nick Trenticosta, executive director of the Loyola Post-Conviction Defender Organization in New Orleans. Still, 70 percent of Americans favor capital punishment.

Since not all misconduct is discovered, nor are all claims legitimate, statistics are imprecise, says Richard Dieter, executive director of the Death Penalty Information Center in Washington. While some argue that capital punishment is immoral, the DPIC opposes it for practical reasons such as its high cost, its low deterrent effect, and the difficulty of administering the death penalty in a fair and consistent way.

This much is known: Each year the United States witnesses an average of 24,000 murders, Mr. Dieter says. Out of the cases in which prosecutors seek the death penalty come 280 capital convictions. Reversals in state courts and other actions limit the growth of death row to 150 a year. Of the cases that reach federal appeals courts, 40 percent have either the conviction or the sentence overturned.

No mistake

Most capital case appeals include claims of prosecutorial misconduct, Dieter says.

"It's silly to say that there's no prosecutorial misconduct in capital cases. We're human," says Clay Strange, a former Texas capital case prosecutor now with the National District Attorneys Association. Still, he adds, "as a general rule, we don't think [misconduct] is widespread at all."

The Monitor reviewed more than 20 cases in a dozen states in which misconduct was found on appeal to have helped a prosecutor win a capital conviction against an innocent man (see map, right).

A few more cases involved men who, once their verdicts were overturned, chose not to spend more years behind bars awaiting a retrial to establish their innocence. Instead, they agreed to plead guilty to reduced charges and go free immediately.

In still others, defendants like Roger Keith Coleman of Virginia were executed despite compelling evidence of their innocence and of prosecutorial misconduct in obtaining their conviction. In Coleman's case, absent any physical evidence, the conviction rested on the testimony of a jailhouse informant whose sentence was then shortened and whose mother-in-law claims he later admitted making it all up.

When Coleman's attorneys barely missed an ambiguous filing deadline for his appeal, the technicality was excuse enough for the Supreme Court to avert its eyes. A second appeal was likewise denied. Coleman was electrocuted in 1992.

Misconduct in capital cases "is a problem that is not going to go away," Dieter says.

The next potentially innocent person to be executed might be Joe Spaziano in Florida. His conviction rests on two pieces of evidence. One is testimony elicited from a witness through hypnosis, a practice Florida courts later outlawed (but not retroactively) as unreliable. The other is a telephone conversation in which the victim was heard to address "Joe." The prosecution knew but never revealed to the jury or to defense attorneys that "Joe" was a co-worker of the victim, not Mr. Spaziano.

In January the United States Supreme Court refused, 9-to-0, to hear Spaziano's appeal. "Innocence is irrelevant," says Mr. Mello, the defense attorney.

Spaziano was to be executed tomorrow, but last week Florida Gov. Lawton Chiles issued an indefinite stay. That raises hopes for clemency, which no Florida governor has granted in 14 years.

What prompts prosecutors to flout the law in the highest-stakes cases? Racism, public pressure for results, a desire to hide their mistakes all have come into play, according to a DPIC study.

Retired Judge Perry Pickett heard more than 50 capital cases in his 41 years on the Texas bench. He says that some prosecutors simply like to brag about their winning records. (Hoyt also cited a desire for "personal aggrandizement" in the Aldape Guerra case.)

Tom Saunders, chief attorney in capital cases for Maryland's public defender's office, encounters prosecutors who affect a "holier than thou" attitude. One he frequently faces in court continues to make the same "reversible error" in case after case, even though higher courts routinely overturn those convictions. Saunders concludes: That prosecutor must think "God is on my side. You're representing the bad guy. I need to win."

Overzealous prosecutors

Overzealousness occurs when prosecutors think, "I know I've got the right man, but can I prove it?" says James Liebman, an expert in constitutional law at Columbia University School of Law in New York. Because they must prove a person's guilt beyond a reasonable doubt, prosecutors feel at a disadvantage, Professor Liebman says. Misconduct can occur when they try to even the odds.

Ira Robbins, a professor of criminal law at the American University law school in Washington, points to political ambition. "Prosecutors love to get a conviction up front. If it's overturned eight years later, well, maybe they've moved on to higher office," he says.

"All of this is not the rule," Saunders says, "but it happens with way too much frequency."

As to the question of a prosecutor knowingly seeking the death penalty for an innocent man, Mr. Strange says, "you'd have a hill to climb to prove to me that that ever happened."

Judge Pickett recalls the case of Clarence Brandley, a black janitor framed for raping and killing a white teenager in Texas. With all appeals exhausted and Mr. Brandley's execution imminent, Pickett was specially appointed in 1987 to review allegations of rampant prosecutorial misconduct.

"The conclusion is inescapable," he found, "that the investigation was conducted not to solve the crime, but to convict Brandley." The case even included secret meetings by the trial judge and prosecutor to rehearse objections and rulings. It took three more years, but Texas, by far the leading executioner among the 38 states with the death penalty, finally let Brandley go free.

Significance of misconduct

Travesties like the Brandley case, Pickett says, have "a terrible negative effect on the public's view of the judicial system in all aspects."

Hoyt blames prosecutors who pursue cases they shouldn't for "giving the public the unwarranted notion that the justice system has failed when a conviction is not obtained or a conviction is reversed."

Look no further for proof than the cynical attitudes toward the O.J. Simpson case, Pickett says.

A poll found that 58 percent of blacks and 18 percent of whites believe Los Angeles police planted evidence to implicate the black celebrity for the murder of his white ex-wife and a white friend of hers. Further, the poll found, only 33 percent of blacks and 70 percent of whites believe that police in general testify truthfully.

The doubters can hardly be reassured by the fact that, in 1990, a grand jury in Los Angeles investigated charges of widespread misuse of testimony from jailhouse informants by the district attorney's office. By one defense lawyer's count, informants had helped prosecutors win about a third of the death sentences handed down in the dozen years prior to the grand jury investigation.

Interestingly, prosecutors in general are beginning to shun snitches and rely on forensic evidence, says Strange, who last fall obtained a death sentence in a Texas case on that basis alone.

Forensic evidence is "better, really, than a low-life eyewitness, which is what you often end up with in a capital case. Also, it's more difficult to cross-examine," he says. The Simpson jury must choose between prosecutor Marcia Clark's forensic evidence or the defense lawyers' theories that the evidence was planted or rendered inconclusive through mishandling.

Even though instances of prosecutorial misconduct in capital cases are regularly brought to light, the public is clamoring for more executions. The last crime bill attached the death penalty to 52 new offenses.

Adding to what Saunders calls a "background drumbeat" to put criminals to death - and fast - are politicians' demands for swift and severe justice, particularly in the wake of the Oklahoma City bombing. In this environment, the death penalty is not even a topic of public policy debate, he says.

"It's dangerous. We need to take care," adds Gerald Goldstein, a San Antonio attorney who is president of the National Association of Criminal Defense Lawyers. Americans would be more interested in ensuring fairness if they knew or cared how capital cases are conducted. They don't - and the danger can be seen in pending legislation, Mr. Goldstein says.

Senate Bill 3 would let federal prosecutors follow ethics rules set by the attorney general instead of the state court rules that govern defense lawyers.

"You can't call a game fair if both sides don't have to play by the same rules," Goldstein says.

That bill would also make attorneys guilty of obstruction of justice if they knowingly include a false fact or statement of law in a pleading.

It would apply to prosecutors, too, he acknowledges, but says "What am I supposed to do, go to a US attorney and say, 'Would you mind going to the grand jury and indicting yourself?' Give me a break!"

In practice, the law would be "a one-way street of intimidation," he says.

He is especially troubled by the counterterrorism bill passed by the Senate earlier this month. It sharply limits the time for filing federal habeas corpus appeals, those used by capital convicts. Goldstein urges consideration of innocents on death row like Randall Dale Adams, the subject of the film "The Thin Blue Line."

"None of those people were discovered until more than 10 years after their conviction and sentence. And yet they want to put a ... limit on habeas corpus?" Goldstein says. "We would have executed all of those people."

But as Professor Robbins observes, "To defend the rights of criminal defendants today is political suicide."

The solution

On April 19, the Supreme Court handed down a decision in the first case of prosecutorial misconduct it had agreed to hear this decade. Possibly such misconduct will diminish as a result, says Liebman, who argued the case.

On a 5-to-4 vote, the court reversed the conviction and capital sentence of Curtis Lee Kyles because Louisiana prosecutors had not turned over a mass of exculpatory evidence to the defense. Lawyers often call such evidence "Brady material" after the 1963 Supreme Court case establishing the defense's right to it.

Writing for the majority, Justice David Souter criticized "the prosecution's blatant and repeated violations of a well-settled Constitutional obligation." Disclosure of the evidence would have made a different verdict "reasonably probable."

Liebman says the ruling gives lower courts a new model to follow. And the courtroom officials first in line to apply it are prosecutors, he adds.

The "Kyles" decision affirms their responsibility for evaluating whether evidence is Brady material. And it tells them "when in doubt, turn it over." Liebman expects that those prosecutors who are aware of "Kyles" will "recalibrate" their behavior.

Significantly, the "Kyles" decision did not give defense attorneys the right to inspect prosecutors' files for themselves.

The public might be surprised that such access is denied, since it is automatic in civil cases. But under US criminal law, trials are not impartial, fact-finding events, but adversarial proceedings in which the state and the defense argue their cases.

As Souter wrote in "Kyles," "We have never held that the Constitution demands an open file policy [by prosecutors], who alone can know what is undisclosed..."

That leaves intact the cloak behind which misconduct can occur.

"Our job is to look over the evidence and see what should be brought to court," says Paul McWilliams, who arranges capital- case training seminars for his fellow Texas prosecutors.

"Failure to disclose evidence is always shown in the worst possible light - it's all a big conspiracy," Mr. McWilliams grumbles.

He attributes such occurrences to "honest differences of opinion."

"I can't imagine any human being so warped and sick that he would withhold evidence in a capital case," adds Ken Anderson, president of the Texas District and County Attorney Association. Capital convicts make such claims in their appeals because they have nothing else to argue, he says.

Not in the long experience of Judge Pickett. "It was a game for prosecutors to withhold material that would even exonerate the defendants," he says. "In most cases, they knew what they were doing."

Liebman, Robbins, Pickett, and Trenticosta agree that opening the prosecutor's files would be for the best. "If [prosecutors'] primary function is to seek truth and not victory, then why do they not open up those files?" Trenticosta asks. "We'd have a much clearer picture of the truth."

Liebman says justice would be more efficient. Defense lawyers wouldn't delay trials when prosecutors bring new evidence to court at the last minute. Prosecutors could get better plea bargains if defense attorneys could see the evidence arrayed against their clients.

As things stand, access is governed by widely varying state rules on pre-trial discovery. Most states "are in the dark ages," Trenticosta says. In Louisiana, for instance, defense attorneys do not even get access at trial to witness statements taken by police, so they can't tell when a witness has changed his story to suit prosecutors.

Liebman says Florida gives fairly good access. But Florida defense attorney Roger Young is skeptical. "It's very dangerous to have to rely on prosecutors to decide what is Brady material," Mr. Young says, "especially when you're dealing with somebody who might go to the electric chair."

Case study

Young represents James Joseph Richardson, who spent 21 years in prison, including five on death row. Then Richardson's case file was stolen from an assistant prosecutor's office and made public. The contents were so startling that Governor Martinez ordered an investigation by Attorney General Janet Reno, then Florida's leading capital-case prosecutor with more than 100 convictions.

In 1989 Ms. Reno confirmed what the files revealed: Not only did prosecutor Frank Schaub know that Richardson was innocent, he also helped manufacture some of the incriminating evidence. (Richardson is suing Florida for compensation for the misdeeds of Schaub, who died in February.)

McWilliams objects that opening the prosecution's files would reveal the identity of witnesses who could be intimidated by friends of the defendant, especially now that gang crime is on the rise.

Timothy Doory, a Maryland prosecutor with a reputation for being very open with capital defendants' attorneys, agrees with McWilliams that protecting witnesses is "a constant concern."

Although Mr. Doory opposes an open-file policy, he calls for more specific guidance from courts or legislatures on classes of information prosecutors should reveal.

California statute

California voters passed Proposition 115 in 1990. It requires more openness by defense attorneys, but also instructs doubtful prosecutors to let a judge decide if evidence is Brady material. "Then you have a neutral party," says Loyola's Professor Levenson.

"Prosecutors are still not used to it," she adds. "They are still getting in trouble with judges, who say 'Why didn't you give it to me?' "

Another way to prevent misconduct might be to punish prosecutors for it. But that is also a difficult issue. Prosecutors have immunity for their official acts. Otherwise, they could be harassed by lawsuits to the point of not being able to fulfill their office.

Ideally prosecutors would police their own ranks, Goldstein says. But the record is discouraging. Cases in which judges found abuse by federal prosecutors resulted in not a single disciplinary action by the Department of Justice's public integrity unit, an internal review found.

Jim Mattox, who has worn the hats of prosecutor, criminal defense attorney, and Texas attorney general, says state district courts have the authority to hand out "pretty severe punishments" to prosecutors.

In practice, though, there are "very, very few examples," not for lack of misconduct but of proof. "You can only detect the tip of the iceberg," Mr. Mattox says.

"It's not uncommon for prosecutors to tell law-enforcement officers that they don't want to know" about evidence that hurts the state's case, he adds. That way they can't be held accountable by the court for not turning it over, even though, as Souter repeats in "Kyles," "...the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police."

Rarely are district attorneys monitored, corrected, or disciplined by anyone - not the Supreme Court, the Justice Department, federal and state politicians, and certainly not prosecutors themselves.

Responsibility for these public servants defaults then to the public at large. But the public doesn't demand accountability for prosecutorial misconduct, Goldstein says.

"We need to," he adds. "How we [allow prosecutors to] treat the least of us - the most despicable - is how ultimately we can expect to be treated ourselves."

*Part 1 of this series on miscarriages of justice ran on March 27.

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