From withholding evidence, to perjury, to coercion of confessions and witnesses, prosecutorial misconduct was at the root of a majority of reversals, and 5.6% of all death penalty sentences since 1972 were reversed because of prosecutor misconduct, according to a study Tuesday from the Death Penalty Information Center.
That means at least 1 in 20 people who were sentenced to death row had trials where prosecutors acted unethically. This points to a major flaw in the country's criminal justice system, the center's executive director Robert Dunham told Law360.
This data is alarming — and may be only the tip of the iceberg of prosecutor misconduct in these high-stakes cases, as many county justice systems are not incentivized to report or investigate unethical conduct, Dunham noted.
"People are becoming increasingly aware that prosecutorial misconduct is a serious and systemic problem, but I don't think any of us appreciated how big a problem it actually is," Dunham said. "5.6% is stunning, but we know it's an understatement of how serious the problem is."
This year marks the 50th anniversary of the 1972 U.S. Supreme Court decision Furman v. Georgia , which invalidated nearly 700 death sentences and found that states had been using the death penalty arbitrarily. The decision, in theory, limited the scope of executions across the United States. However, many advocates have pointed out that 50 years later, the system is still deeply flawed.
The Death Penalty Information System this year compiled a database tracking the over 9,700 death sentences in the U.S. since 1972. Of those, the data showed only about 1,547 people have been executed by the state, and at least 189 people who were wrongly convicted and sentenced to death were exonerated.
But Dunham said the center also wanted to track how often prosecutorial misconduct factored into death sentences being reversed. Of the 189 exonerations, meaning the defendant was completely freed from all charges, 121 of those cases involved prosecutorial misconduct, or 64%.
When you include reversals — when the case is remanded for a new trial, but the defendant is not declared legally innocent — 550 sentences were overturned because of a prosecutor's misconduct.
The percentages get higher for Black and Latino death row exonerees when you break the sentences down by race, Dunham said. For Black exonerees, 78.8% of cases involved prosecutorial misconduct. For Latino exonerees, the prosecutor acted wrongfully in 68.8% of cases. And 58.2% of white exonerees dealt with prosecutor misconduct, still a significant amount, Dunham pointed out.
Misconduct could include withholding evidence, picking an all-white jury, making inflammatory arguments that stretch the truth — if not fabricate it — and coercing confessions.
The most common kind of misconduct was the withholding of Brady evidence, or evidence that does not support a conviction. Dunham said this is alarming, given the current conservative bent of the Supreme Court. While he said he doesn't think the high court will weaken Brady v. Maryland the way it recently did Miranda v. Arizona , lower courts can get around enforcing the ruling.
"In the Brady cases, there's lots of evidence that gets withheld, and we frequently see the courts decide that the evidence is not material," he said. "That's their way of not enforcing it."
Dunham pointed out it is highly unlikely these numbers truly represent the amount of prosecutorial misconduct in death penalty cases.
Many things have to happen for a death penalty sentence to be reversed on account of prosecutorial misconduct, Dunham noted. First, the bad behavior must be discovered. Second, a judge has to grant relief. Both can be virtually impossible in counties where those in power are invested in sweeping controversy under the rug, he said.
"Very often the judge is, particularly in states in which trial judges are elected, a former colleague of the prosecutor or came through the prosecutor's office on their way to judgeship," he said. "And that means that they are part of the same prosecutorial culture as the people who are committing misconduct."
The National District Attorneys Association did not immediately respond to a request for comment Friday.
Dunham said there are also over a hundred reversals of death penalty sentences that do not include a public opinion, and therefore the reason the case was overturned is not publicly knowable. He said it's likely many of those cases involved prosecutor misconduct.
The county that saw the most reversals and exonerations was Pennsylvania's Philadelphia County. And several counties had more than 10 exonerations involving misconduct: Cook County, Illinois, containing Chicago; Los Angeles County, California; Clarke County, Nevada, which includes Las Vegas; Oklahoma County; Cuyahoga County, Ohio, which includes Cleveland; and Mobile County, Alabama.
Death penalty cases in particular invite prosecutor misconduct, Dunham said. They often garner a lot of public attention. There's a lot of pressure on the prosecutor to convict and then get the harshest sentence possible.
"The political reward, historically, for a prosecutor has been the conviction and the sentence," he said. "And what happens after that doesn't have political consequences."
But when you look at a county like Philadelphia, it's not so straightforward, said Dunham, who was once the director of the Pennsylvania Capital Case Resource Center. While the prosecutorial culture was aggressive and unruly for many years, a wave of reform was likely what led to the reversals, he said.
In the late '90s in Philadelphia, the public defender's office was finally permitted to handle death penalty cases, and it "figured out where prosecutors and police were hiding things," Dunham said. The city got its first post-conviction capital defender, and the federal defender's office got a capital habeas unit.
And Philadelphia District Attorney Larry Krasner came in and devoted resources to conviction integrity and investigating misconduct, Dunham said. A new bent towards criminal justice reform is a trend in many counties with high exoneration rates, he pointed out.
"As more and more reform prosecutors are elected across the country and truly independent conviction integrity units are allowed to reinvestigate cases, you are seeing more and more exonerations," Dunham said. "And you are seeing more and more exonerations involving misconduct."
But real reform will take a change in the culture of district attorney's offices across the country, he added.
"How many people do you see getting rewarded and promoted because they didn't seek the death penalty in a particular case; because they discovered exculpatory evidence that the police had been hiding?" he said. "Until the reward system changes and integrity becomes the standard by which you are promoted, we're not going to have realistic reform."
Although it may only show the most visible cases involving misconduct, Dunham said the data can be helpful in current death penalty trials. While judges often grant prosecutors the benefit of the doubt, declining to order more DNA testing or dismissing complaints against prosecutors as "harmless errors," the data shows misconduct in district attorney's offices across the country is pervasive.
"Understanding how much misconduct there is and what kinds of things get withheld, it suggests that if there is some other step the court can take to allow the truth to be found, the court should take it," he said.
--Editing by Lakshna Mehta.
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