By Ken Armstrong
and Maurice Possley
With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases.
They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.
They do it to win.
They do it because they won't get punished.
They have done it to defendants who came within hours of being executed, only to be exonerated.
In the first study of its kind, a Chicago Tribune analysis of thousands of court records, appellate rulings and lawyer disciplinary records from across the United States has found:
- Since a 1963 U.S. Supreme Court ruling designed to curb misconduct by prosecutors, at least 381 defendants nationally have had a homicide conviction thrown out because prosecutors concealed evidence suggesting innocence or presented evidence they knew to be false. Of all the ways that prosecutors can cheat, those two are considered the worst by the courts. And that number represents only a fraction of how often such cheating occurs.
- The U.S. Supreme Court has declared such misconduct by prosecutors to be so reprehensible that it warrants criminal charges and disbarment. But not one of those prosecutors was convicted of a crime. Not one was barred from practicing law. Instead, many saw their careers advance, becoming judges or district attorneys. One became a congressman.
- Of the 381 defendants, 67 had been sentenced to death. They include Verneal Jimerson of Illinois and Kirk Bloodsworth of Maryland, both later exonerated by DNA tests; Randall Dale Adams of Texas, whose wrongful conviction was revealed by the documentary "The Thin Blue Line;" and Sonia Jacobs of Florida, who was eventually freed but whose boyfriend, convicted on virtually identical evidence, had already been executed by the time her appeal prevailed.
- Nearly 30 of those 67 Death Row inmates -- or about half of those whose cases have been resolved -- were subsequently freed. But almost all first spent at least five years in prison. One served 26 years before his conviction was reversed and the charges dropped.
- Illinois' record for misconduct by prosecutors is particularly abysmal. Of the 381 people whose homicide convictions were reversed, 46 were tried in Illinois. That's the second-highest total and twice as many as the state that ranks third. Only New York state, which is more populous, has more cases, and its total can be partly attributed to a special rule that loosens the requirements for a conviction's reversal.
The failure of prosecutors to obey the demands of justice--and the legal system's failure to hold them accountable for it--leads to wrongful convictions, and retrials and appeals that cost taxpayers millions of dollars. It also fosters a corrosive distrust in a branch of government that America holds up as a standard to the world. Next week, three former DuPage County prosecutors will face trial on charges of conspiring to frame Rolando Cruz, who served about 10 years on Death Row before being acquitted at his third trial on charges of murdering 10-year-old Jeanine Nicarico. The case is exceptionally rare -- not because prosecutors have been accused of concealing evidence and knowingly using false evidence, but because they have been indicted for it.
If convicted of a felony for such misconduct, it would be the first time that has happened in the United States.
Prosecutors, who are the criminal justice system's gatekeepers, hold powers and responsibilities unique in American society. The decisions they make can determine who avoids or stands trial, who is convicted or acquitted, who lives or dies. They must protect society from criminals while upholding the justice system's integrity. They are supposed to avoid underhanded tactics that can help put away the guilty but threaten to convict the innocent.
Many prosecutors follow the rules and honor their obligations. Even while sifting through the wreckage of one horrific crime after another, they avoid crossing the line that separates the vigorous prosecutor from the overzealous one--or if they do, their trespasses are brief, usually a flip comment or ill-advised question made in the heat of courtroom battle.
"I believe the great majority of prosecutors in this country are truly dedicated to doing their jobs in the proper fashion," said John Justice, president of the National District Attorneys Association and a South Carolina prosecutor.
But the kind of deliberate misconduct that contributed to those 381 defendants' homicide convictions is so grave that courts believe it should never occur. And although prosecutors often downplay individual cases involving such deceit as aberrations, the body of cases turned up by the Tribune's search reveals that it happens frequently and in nearly limitless ways.
Prosecutors have concealed evidence that discredited their star witnesses, pointed to other suspects or supported a defendant's claim of self-defense. They have suppressed evidence that a murder occurred when the defendants had alibis, or that it occurred not in a defendant's home, as alleged, but in someone else's cornfield far away. In one case prosecutors depicted red paint as blood. In another they portrayed hog blood as human.
In upstate New York, prosecutors won convictions against two African-American men, Sammy Thomas and his brother Willie Gene, while keeping secret an eyewitness statement from the victim's brother, who told police the killers were white. Willie Gene was retried and acquitted in 1980. The charges were then dropped against his brother. The prosecutor, Peter Corning, became a judge. In South Bend, Ind., Zollie Arline was convicted in 1972 of manslaughter. Arline claimed self-defense, saying he clubbed James Patton with a 2-by-4 after Patton cut him with a knife. Police gave the knife to the prosecutor, but he not only hid it from the defense, he exaggerated its absence at trial. "Did you see any knives?" he asked one witness after another, always getting "no" for an answer. Arline's conviction was reversed because of the prosecutor's deception, and the charges against him were dropped.
Prosecutors in South Carolina and Arizona did the same thing in cases where self-defense was alleged, hiding a victim's knife and then arguing there was no knife. A Colorado prosecutor hid the victim's gun and then argued there was no gun. A Downstate Illinois prosecutor hid a piece of pipe and then argued there was no pipe. Each time, the defendant's conviction was thrown out.
In 1998 alone, at least three people were freed after being retried because prosecutors had concealed evidence. In Texas, prosecutors didn't disclose that a blood-spatter expert had supported Susie Mowbray's claim that her husband shot himself. She was acquitted at retrial. In Louisiana, prosecutors withheld evidence suggesting a police informant had framed Curtis Kyles. At retrial, the jury deadlocked and Kyles was freed. In New Jersey, prosecutors concealed evidence indicating the killer was their chief witness -- and not Vincent Landano, the defendant. At a new trial, Landano was acquitted.
Because of its focus on homicide cases -- which are usually prosecuted in state courts--the Tribune study uncovered only a few reversed federal convictions. Almost all of them occurred in Illinois, where 13 El Rukn gang members received new trials after being convicted in a wide-ranging murder and narcotics conspiracy prosecution.
Although the Tribune found 381 defendants whose homicide convictions were overturned based upon such misconduct, that number accounts for only a fraction of how often prosecutors commit such deception -- which is by design hidden and can take extraordinary efforts to uncover. No one knows how often prosecutors engage in such duplicity but aren't caught. And even when prosecutors are caught, findings of misconduct aren't filed in an easily accessible directory. The legal system keeps track of convictions won, not convictions lost on appeal because prosecutors went too far.
In a 1963 case, Brady v. Maryland, the U.S. Supreme Court ruled that prosecutors must disclose evidence favorable to a defendant. But even when prosecutors are caught hiding evidence, courts will reverse a conviction only if the evidence was so strong that its disclosure would have created a "reasonable probability" of a different verdict. Courts use a similar threshold in cases where prosecutors presented evidence they knew to be false.
The result is that courts frequently uphold a conviction even when prosecutors suppress evidence or allow witnesses to lie, ruling that the prosecutor's actions, while reprehensible, probably did not change the trial's outcome.
And catching prosecutors who have engaged in such deception can be extremely difficult.
In the case of James Richardson, a Florida man wrongly convicted in the poisoning deaths of his seven children, certain evidence undermining the state's case surfaced only after being stolen from a prosecutor's office by a man dating the prosecutor's secretary. Richardson was set free in 1989 after serving 21 years. Evidence has surfaced in other cases only after a judge directed the U.S. marshal to seize the prosecutors' documents, or because newspapers sued under the Freedom of Information Act, or because of anonymous tips, conversations accidentally overheard or papers spied in a prosecutor's hand.
Striking 'foul' blows
In 1935, U.S. Supreme Court Justice George Sutherland described the prosecutor's role with words quoted hundreds of times since then. As the lawyer for the people, Sutherland wrote, the prosecutor's job is twofold: "that guilt shall not escape or innocence suffer."
"(W)hile he may strike hard blows," Sutherland wrote of prosecutors, "he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
Even guilty defendants must receive a fair trial, the courts say. Otherwise, the integrity of the criminal justice system suffers. Dozens of rules constrain prosecutors. The prohibitions against suppressing evidence or knowingly using false evidence are only two of them.
Courts have established rules of a fair trial that cover everything from how prosecutors secure an indictment to what they can say during a trial's closing argument. Prosecutors commit misconduct when they break those rules, whether it's discriminating against blacks during jury selection, engaging in personal attacks on defense attorneys, destroying a witness' credibility with questions containing false allegations or suggesting jurors should infer guilt because a defendant didn't testify.
History offers examples of prosecutors who exemplified Sutherland's ideal by righting wrongs instead of covering them up.
Homer Cummings, a Connecticut prosecutor who later served as U.S. attorney general, won acclaim in the 1920s for withstanding the public clamor for revenge in the wake of a priest's murder. Convinced a defendant's confession had been coerced, he demonstrated the man's innocence instead of using questionable evidence to convict him. In the 1980s, Michael Falconer, a Lake County prosecutor, provoked outrage from Cook County prosecutors by stepping forward with evidence that undermined their case against two men who had been sentenced to death. Both were ultimately acquitted after new trials.
But in the hundreds of cases found by the Tribune, prosecutors went in the other direction from Cummings and Falconer, showing a disrespect for the law that is typically associated with criminals, not the men and women who prosecute them.
Ask judges, defense attorneys, prosecutors and legal scholars why prosecutors cheat, and they often answer with two simple words: To win.
"Winning has become more important than doing justice. Nobody runs for the Senate saying I did justice," says Harvard University law professor Alan Dershowitz, a longtime critic of prosecutors. The drive to win is fueled by a variety of factors, including the satisfaction of putting away a dangerous criminal, pleasing the public, and providing justice for victims or their survivors. Prosecutors also fear allowing a guilty defendant to go free and losing the esteem and confidence of colleagues.
Then there is the knowledge that prosecutors rarely get punished, even if their conduct is outrageous.
A dramatic example is provided by the 381 homicide defendants who received new trials because prosecutors hid evidence or allowed witnesses to lie. The appellate courts denounced the prosecutors' actions with words like "unforgivable," "intolerable," "beyond reprehension," and "illegal, improper and dishonest." At least a dozen of the prosecutors were investigated by state agencies charged with policing lawyers for misconduct.
But so far, here is what has happened to the prosecutors in those hundreds of cases: One was fired, but appealed and was reinstated with back pay. Another received an in-house suspension of 30 days. A third prosecutor's law license was suspended for 59 days, but because of other misconduct in the case.
Not one received any kind of public sanction from a state lawyer disciplinary agency or was convicted of any crime for hiding evidence or presenting false evidence, the Tribune found. Two were indicted, but the charges were dismissed before trial.
It is impossible to say whether any of the prosecutors received any professional discipline at all, because most states allow agencies to discipline lawyers privately if the punishment is a low-grade sanction like an admonition or reprimand. It is also impossible to say precisely how many prosecutors were investigated and cleared, because investigations that don't end in disciplinary action often remain confidential.
The U.S. Supreme Court itself has contributed to the fiction that prosecutors who strike foul blows will suffer meaningful consequences. In 1976, the court granted prosecutors immunity from lawsuits even if they conceal evidence or knowingly use false evidence, saying sufficient checks already existed -- disbarment and criminal prosecution.
However, a Tribune search failed to turn up a single prosecutor who was disbarred for securing a conviction while engaging in such misconduct in any kind of criminal case. And it found only two cases where prosecutors were convicted of criminal charges for such misconduct. Both of those convictions, one in an Ohio rape case and the other in a New York robbery case, were misdemeanors that resulted in $500 fines.
Instead, the prosecutor's career advances. In Georgia, George "Buddy" Darden became a congressman after a court concluded that he withheld evidence in a case where seven men, later exonerated, were convicted of murder and one was sentenced to death. In New Mexico, Virginia Ferrara failed to disclose evidence of another suspect in a murder case. By the time the conviction was reversed she had become chief disciplinary counsel for the New Mexico agency that polices lawyers for misconduct.
Bennett Gershman, a law professor at Pace University in White Plains, N.Y., has written extensively about misconduct by prosecutors and calls it a "serious cancer in our system of justice."
"There is no check on prosecutorial misconduct except for the prosecutor's own attitudes and beliefs and inner morality," he said. In New Orleans, where prosecutors have been condemned repeatedly for withholding evidence, Orleans Parish Judge Calvin Johnson has also found that prosecutors don't pay in any meaningful way for such misconduct. But in his courtroom at least, he has tried to change that.
He has held prosecutors in contempt. He has ordered them to take law classes. He has thrown out three murder convictions this decade. And last year, he sent a letter to New Orleans District Atty. Harry Connick, threatening to report Connick's assistants to the state's lawyer disciplinary agency the next time he caught them withholding evidence.
"From (Connick's) perspective, bad guys are bad guys and whatever we need to do to put them away is OK," Johnson said recently. "But the problem is, every now and then, it's not a bad guy. Every now and then, you've got the wrong guy."
In 1979, Isaac Knapper was accused by Connick's office of murdering a tourist. He was convicted, but more than a decade later the Louisiana Supreme Court reversed his conviction because prosecutors didn't disclose a police report undercutting their case. The report documented the arrests of three men for a different robbery five blocks away using the same gun that killed the tourist.
After his conviction was reversed in 1991, Knapper was not retried. He was 16 when arrested, a gifted amateur boxer working to become a professional. He was 29 when freed. The years in between were spent at the penitentiary in Angola, one of the country's toughest prisons. After being freed, Knapper boxed professionally for awhile, but his best years were behind him. He now owns a liquor store in New Orleans.
"They wanted to get a conviction, they wanted to clear the books," he said recently. "They railroaded me."
Laurie White, the defense attorney who won Knapper's appeal, used to work for Connick but now refers to prosecutors as "those lying, cheating bastards." She has won new trials for five clients -- four convicted of murder, one of rape -- by showing that prosecutors suppressed evidence. In another case, a judge quashed a murder indictment because prosecutors withheld evidence.
White said she regularly uncovers evidence that prosecutors should have disclosed. "Now is it knowing and intelligent, or because they're stupid and unprepared? I don't know."
Connick, the father of singer Harry Connick Jr., has been district attorney since 1974. He said his prosecutors labor under difficult circumstances where mistakes can happen. Many are inexperienced. Turnover is rampant. He has 80 prosecutors, and this year, 30 are new. Next year, 30 more will be new. His prosecutors average 30 jury trials year -- a daunting caseload -- and they can find it difficult to keep track of what evidence has been disclosed in every case they handle, Connick said.
But, Connick said, he believes his prosecutors "follow the rules in 99.9 percent of the cases."
John Justice, the National District Attorneys Association president, noted that prosecutors are answerable to the public.
"Most of us are elected officials, and the final sanction is when people vote every two, four or six years," he said. "They can vote us out of office."
But voters don't always know about misconduct by prosecutors. In their written opinions, appeals courts rarely name prosecutors, even those found to have acted abominably. And many states publish only a fraction of their appellate opinions in law libraries or electronic databases. Wrongdoing by prosecutors remains largely undetectable, with puzzle pieces scattered in warehoused trial transcripts and in court rulings that are hard to find or connect.
And even if the public does know about an individual prosecutor's misconduct, that doesn't mean voters will repudiate him. A victim fights back
When Ray Whitley ran for re-election last year as the chief prosecutor in Sumner County, Tenn., Robert Spurlock spent months working for Whitley's opponent--making signs, handing out fliers and sharing his story with all who would listen.
Spurlock, a 32-year -old mechanic, served more than four years in prison for a crime he didn't commit. He holds Whitley responsible. So did the Tennessee Court of Criminal Appeals.
Spurlock and Ronnie Marshall were convicted in 1990 of murdering a man and dumping him in a drainage ditch. But the appeals court reversed the convictions and lambasted Whitley, saying he concealed evidence that pointed to other suspects and discredited his star witness. He also allowed witnesses to lie, the court ruled.
The star witness, Henry "Skully" Apple, testified that he was with Spurlock and Marshall on the night of the murder. He told a story of hearing screams in the distance, then seeing Spurlock spattered with blood.
Apple denied he had been promised an early release from jail on an unrelated crime in exchange for testifying against Spurlock. A sheriff's deputy also testified that no such promise was made. But both those witnesses lied, the appeals court ruled, and Whitley knew they were lying.
Police had taped the jailhouse interviews with Apple, and those tapes not only verified the promise, they undermined other aspects of Apple's testimony as well, the court said. But Whitley failed to disclose those tapes, the court ruled.
After receiving new trials, Spurlock and Marshall were convicted again. But in 1996, they were freed after newly discovered evidence implicated the real killer, who later pleaded guilty.
The state's lawyer disciplinary agency investigated Whitley but cleared him of wrongdoing. Rick Halprin, a Chicago attorney representing Spurlock, called the investigation a "whitewash" and an "outrage."
Voters also approved of Whitley's work. Despite Spurlock's campaign efforts, residents re-elected Whitley in August with 58 percent of the vote.
Whitley and his attorney declined comment about the case, citing a pending lawsuit filed by Spurlock and Marshall, who hope to find a way around the prosecutorial immunity barrier or to convince the courts to dismantle it. But in court documents, Whitley has denied concealing evidence or allowing witnesses to lie.
Spurlock would like to see the tables turned on Whitley. Said Spurlock: "I want to get him sitting behind those bars for awhile