Reigning in the Prosecutors

By William Fisher

Writing articles about prisoners on Death Row is easy. Even after conviction, nagging questions about guilt or innocence often remain. Most of the colorful characters in the original cast are still around. All the suspense of a good whodunit is still there.

That’s the easy part.

The hard part comes when it emerges that an innocent person has been sentenced to die for a crime he didn’t commit. And when the alleged reason is misconduct by the prosecutors.

Doing something about that is the hard part. Because prosecutors are powerful people.

And so it was with Tyrone Noling, who has been sitting on death row since 1990, when he was convicted of murdering an elderly couple.

In 2009, 13 years after the original trial, prosecutors provided defense attorneys with handwritten police notes from the investigations in 1990 in which a witness identified another man as having committed the murders.

But the state is currently refusing to test DNA evidence collected from the crime scene that might place this “other man” at the scene of the crime.

As in the case of Troy Davis, who was put to death in Georgia last year, at the time Noling was charged there was no physical evidence and no witnesses to the alleged crime.

But Andrew Cohen, writing in The Atlantic, points out that when an aggressive investigator took over the case, some witnesses began giving statements against Noling. Cohen adds that all these witnesses have since recanted their statements, claiming they were pressured by the prosecutor.

And the Death Penalty Information Center, in a statement, said, “We pause for a moment to highlight our concern about Noling's death sentence in light of questions raised regarding his prosecution. Noling was not indicted until five years after the…murders when a new local prosecutor took office. That new prosecutor pursued the cold murder case with suspicious vigor according to Noling's accusers, who have since recanted their stories and now claim that they only identified Noling as the murderer in the first place because they were threatened by the prosecutor.”

Nonetheless, Noling was convicted on that testimony and remains on death row.

What to do about it? Well, in such cases, organizations and individuals traditionally circulate petitions and contact their lawmakers. From time to time, we hear from the American Bar Association or the Association of Trial Lawyers, calling for investigations of prosecutorial misconduct, more oversight of prosecutors, or tougher penalties on lawyers who break the rules. Sometimes, the media may pick up the odd story. But it typically has a one-day life, failing to gain the traction needed to be widely publicized.

But now, four organizations are conducting a campaign do something about the dozens of cases in which prosecutors failed to take the actions demanded by the law and their professional code of ethics.

The Innocence Project, Veritas Initiative, the Innocence Project New Orleans and Voices of Innocence have embarked on a nationwide tour focused on Prosecutorial Oversight. Its objective is to explore policy reforms to discourage overzealous prosecutors from trying to make their own laws.

The tour, which includes stops in Arizona, California, Louisiana, New York, Pennsylvania and Texas, will bring together participants from all aspects of the criminal justice system including legal ethics professors, members of bar disciplinary committees, prosecutors and judges. At the end of the tour, the groups will prepare a report with recommendations for reform.

“We recognize that this is a complex problem. It is not easy to develop internal systems in prosecutors’ offices that effectively distinguish between error and misconduct nor independent institutions outside of their offices that can adequately investigate and remedy misconduct when it occurs,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. The Innocence Project has become celebrated for freeing hundreds of prisoners who were wrongfully convicted.

John Thompson --- who lost his appeal before the U.S. Supreme Court last year and was stripped of his $14 million civil award for the intentional misconduct that caused his wrongful murder conviction and near execution -- will headline forums across the country with policy makers and prosecutors to spark a national dialogue on possible solutions.

“As someone who came within days of being put to death because of the intentional misconduct of prosecutors at the New Orleans District Attorney’s Office, I’m all too familiar with what can go wrong when the enormous power of prosecutors goes unchecked,” said Thompson, Founder and Director of Resurrection After Exoneration and Voices of Innocence.

“My case was not an isolated incident. Of the six men who received the death penalty at the hands of one of my prosecutors, five had their convictions reversed because of prosecutorial misconduct. I know that most prosecutors are as bothered by this behavior as I am, and I call on them to help us find a way to make prosecutors’ offices more accountable,” Thompson said.

Kathleen Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative, added, “Allowing this type of misconduct to persist undercuts public trust and undermines prosecutors who do their jobs properly. Prosecutors – who are no doubt just as concerned about misconduct as we are – are in an excellent position to help identify and correct improper prosecutorial actions. Their input will be invaluable as we move forward with collaborative discussions focused on solving this problem.”

At each stop on the tour, the groups will release new state specific research illustrating the scope of the problem. This research will mirror research that was released last year in California by the Veritas Initiative in Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, which documented 707 instances where an appellate court found misconduct during the 13 year period, but found that only 7 prosecutors were disciplined.

Similar research has been conducted by the Innocence Project in New York State. It concluded that only a tiny fraction of prosecutorial misconduct charges ever result in disciplinary action against the offending attorney.
“There’s no question that prosecutors have tremendous responsibility to protect our safety, but everyone suffers when prosecutors put their zeal for winning above finding the truth. We’ve seen too many situations where the innocent are unjustly punished because of prosecutorial misconduct. The current mechanisms of accountability are not working. These forums are an important step towards reform that is long overdue,” said Angela Davis, professor of law at American University's Washington College of Law and author of Arbitrary Justice: The Power of the American Prosecutor.

Meanwhile, the Death Penalty Information Center (DPIC) is collecting information on pending legislation related to the death penalty. For example, at least nine states will consider bills to repeal the death penalty in 2012. In California, a coalition called Taxpayers for Justice has been collecting signatures to place a death penalty repeal initiative on the ballot in November. Other states considering repeal bills are Connecticut, Florida, Georgia, Kansas, Maryland, Nebraska, and Pennsylvania.