Friday, August 3, 2007

Prosecutorial Misconduct in North Carolina

More excerpts from the Center on Public Integrity: June 26, 2003

The Center's study of criminal appeals from 1970 to the present revealed 120 North Carolina cases in which the defendant alleged prosecutorial error or misconduct. In 14, judges ruled a prosecutor's conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In six, a dissenting judge or judges thought the prosecutor's conduct prejudiced the defendant. Of all the defendants who alleged error or misconduct, two later proved their innocence. In 35 cases, defendants pointed to Biblical references made by prosecutors as grounds for reversal. The Supreme Court found Biblical references to be prejudicial in only two of the cases.

Of the cases in which judges ruled a prosecutor's conduct prejudiced the defendant, eleven involved improper trial arguments and behavior, two involved the prosecution withholding evidence from the defense and one involved prosecutorial vindictiveness.

Joe Freeman Britt made it into the Guinness Book of World Records as the "world's deadliest prosecutor" after he won 44 death penalty convictions during the 15 years he served as Robeson County's District Attorney. What the record book does not mention is how he won.

The Supreme Court of North Carolina has scrutinized Britt's conduct in at least 10 of his death penalty convictions. In two, the Supreme Court held his trial tactics and arguments were so prejudicial that the death sentence could not stand. In another two, Supreme Court judges disagreed with the majority and thought Britt's conduct warranted reversing the defendant's death sentence.

In a 1982 murder trial, a prosecutor "argued in effect that the powers of public officials, including the police, prosecutors and judges are ordained by God as his representatives on earth and that to resist these powers is to resist God."

In December 1995, Phyllis Cherry, a former Bertie County prosecutor, urged the jury to sentence Charles Phillips Bond to death, even though he didn't actually commit the murder. He wasn't even at the crime scene. "Lynch mob activity has always been condemned by the Good Book, but justice under the law has always been upheld and supported by the Good Book," Cherry said to the jury. They sentenced Bond to death.

The jury sentenced James Alan Gell to death. The prosecutors convinced the jury that Gell and an accomplice shot and killed a man on April 3, 1995. April 3 was the only day Gell could have committed the murder—he was out of town on April 4 and 5, and in jail on car-theft charges from April 6 until the discovery of the victim's body. Prosecutors Hoke and Graves didn't disclose that 17 witnesses had seen the victim alive between April 6 and April 10. The state also withheld a secret tape recording of a phone call between two witnesses that showed they were fabricating their version of events. Also, forensic evidence indicated that Gell was in jail the day the actual murder occurred.

Prosecutorial Misconduct: How common is it?

Excerpts from the Center for Public Integrity, June 6, 2003:

Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules while convicting defendants, the Center has found. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,012 cases.

In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion; some of the dissenting judges wrote that they found the misconduct warranted a reversal. In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using a doctrine called "harmless error."

The Center 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. The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club.

Prosecutorial misconduct falls into several categories, including:

*Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);

*Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);

*Failing to disclose exculpatory evidence;

*Threatening, badgering or tampering with witnesses;

*Using false or misleading evidence;

*Harassing, displaying bias toward, or having a vendetta against the defendant or defendant's counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);

*Improper behavior during grand jury proceedings.

Some of the most common allegations of prosecutorial misconduct involved improper closing arguments and excluding jurors on the basis of race, ethnicity, gender or some other discriminatory grounds.

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. . . . misconduct often occurs out of sight, especially in cases that never go to trial. . . . "It is not a safe assumption that cases ending with guilty pleas are absent prosecutorial misconduct."

Perhaps the most difficult type of misconduct to unearth, Goldwasser said, is the failure of the prosecutor to turn over possibly exculpatory information to the defense.

Sunday, July 29, 2007

Lack of sympathy for the wrongly convicted

As I have engaged this work, I have encountered a definite lack of sympathy for the wrongly convicted. Attitudes range from, "Why waste your time on those people" to the outright accusation that I am aiding and abetting crime.

It is sad, but true, that a number of wrongful convictees are criminals - they just aren't guilty of the particular crime they are currently serving time for. A common attitude is that the wrongful conviction got that criminal off the street, preventing him or her from committing more crime, so Justice was served after all. And they comfort themselves with the assurance that the criminal who did commit that particular crime will eventually get caught for other crimes, so there's no real harm done.

I admit it's difficult to argue against that rationale. However, let's make it a personal application. Most of us use credit cards. How would you feel if Person B charged something on your card without your permission, you reported it to the Card Company, and their response was that you have made other charges to your card and just because you didn't make this one, doesn't mean you don't have to pay for it. And, at some point in time, someone else will charge something against Person B's card, which he'll have to pay for, so it all comes out even in the end. Doesn't make sense, does it? Even if you are irresponsible with your credit card use, you still do not deserve to be charged for someone else's purchases.

So, even if some wrongful convictees are criminals, we still are not serving Justice by convicting them of crimes they did not commit.