In its report entitled Preventable Error, the The Veritas Initiative, the research and policy arm of the Northern California Innocence Project (NCIP) at Santa Clara University School of Law, in examining cases of prosecutorial misconduct, uncovered over 700 cases during an 11-year period in which courts had found prosecutorial misconduct – with only six prosecutors disciplined.
There is also the US Supreme Court case, in which a 5-4 Court overturned sanctions and award given to wrongly-accused John Thompson of Louisiana. Mr. Thompson was convicted of murder and spent 14 years on death row before private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. Prosecutors also destroyed clothing that would have shown that his blood type did not match the blood on the scene.
His conviction overturned, Mr. Thompson was awarded $14 million by a jury for the wrongful imprisonment, but the US Supreme Court overturned it in what some called “one of the most cruel Supreme Court decisions ever,” with Justice Clarence Thomas ruling that the district attorney can’t be responsible for the single act of a lone prosecutor.
But the tide may be turning nationally on the recognition of the egregiousness and the danger of prosecutorial misconduct.
Nowhere is that perhaps more visible than a stunning decision in Pennsylvania. The Philadelphia Daily News reports that a judge has ruled that there can be no retrial of murder due to the misconduct in the case by the prosecution.
According to the news report, the judge called it “a horrible case” and declared three defendants not to be “Boy Scouts,” but he “barred the Philadelphia District Attorney’s Office from retrying the men for the 2002 torture murder and robbery of a drug dealer.”
The paper writes, “It was a stunning legal victory for a trio of defendants who – according to trial testimony – wrapped their victim’s limbs and mouth in duct tape, beat him, placed a heated kitchen knife on his penis and other body parts, and shot him in the head.”
The Pennsylvania Superior Court vacated the convictions in 2012, citing two instances of prosecutorial misconduct during the trial on the part of Assistant District Attorney Edward Cameron.
The paper reports, “It found that Cameron improperly tried to bolster the credibility of a key prosecution witness by telling the jury during closing arguments that he had helped solve seven murders, and by giving the jury the impression that the witness had the support of prosecuting authorities by calling to the witness stand Ed McCann, the chief of the D.A.’s Homicide Unit, who corroborated the witness’ testimony.
“Citing the same misconduct, Common Pleas Judge Benjamin Lerner yesterday ruled that the District Attorney’s Office could not retry the defendants because the double jeopardy clause of the state constitution prohibits a retrial when a conviction has been vacated because of prosecutorial misconduct.”
They continued, quoting Judge Lerner, “‘Our justice system is designed to protect not only the rights of the innocent, but also those who are possibly guilty when they are denied the elements of a fair trial.'”
The appeals court ruled that the DA in the case “in his closing argument to the jury, suggested that Smithwick’s credibility was good because he helped authorities solve seven other murders. That was not among evidence introduced at trial, and Superior Court ruled that it was improper for Cameron to have used in his closing.”
The court noted that defense lawyers moved for mistrial on grounds of prosecutorial misconduct more than 20 times, but the trial judge elected to give the jury “curative instructions,” explaining to the jury why it must ignore the statements.
“We question the efficacy of these repetitive curative instructions necessitated by the [prosecution’s] serial improper questioning and argument,” the Superior Court added.
Judge Lerner granted the defense’s motion to invoke a double-jeopardy holding through a Pennsylvania Supreme Court precedent. He stated, “The prosecutor’s efforts . . . constituted deliberate attempts to destroy the objectivity of the jury and to prevent the jury from rendering a true verdict.”
“These defendants are charged with a brutal murder, and two of them are already in prison for life for other murders. This office will be appealing the decision made by Judge Lerner today and we look forward to retrying all three in the future,” read a statement released by Tasha Jamerson, spokeswoman for D.A. Seth Williams.
The implications of this ruling are more limited, however. Two of the defendants are serving life sentences, including one on death row, for separate murders. The third defendant would be free if the appeal fails.
The Philadelphia Inquirer reports, “(Judge) Lerner said that if judges began making exceptions to the right to a fair trial because the defendants were ‘bad people . . . then I think we’re beyond what makes this system uniquely fair and uniquely just.’”
To some extent, the judge may have felt that this was an opportunity to hammer home the point about egregious prosecutorial misconduct with relatively little consequence, although one of the defendants would go free.
—David M. Greenwald reporting