Thursday, May 14, 2015
Reading a fascinating post on America's Deadliest Prosecutors by Professor Robert J. Smith of the University of North Carolina at Chapel Hill led me to an article in the Arizona Republic on prosecutorial misconduct (and the tepid reaction by the bar disciplinary system) in Arizona.
The Arizona Republic reviewed all direct appeals of death sentences issued by the court between 2002 and the present.
Among those 82 direct appeals, there were 42 in which the defendants alleged prosecutorial misbehavior or outright misconduct, 33 of them from Maricopa County, which, as the largest county, has the busiest Superior Court.
The Supreme Court justices found that impropriety or misconduct had occurred in 16 of those 42 cases.
But only two were reversed and remanded because of the behavior (in one case characterized only as overreaching). Two prosecutors were disciplined. The offenses varied in seriousness from rolling eyes and sarcasm to introducing false testimony and failing to disclose evidence that might have helped the defendant.
But, overwhelmingly, even when misconduct was found, the high court determined that it was “harmless error,” the defendant would have been convicted anyway, or the judge had cured the problem by making a jury instruction.
Some of the most egregious instances do not show up in The Republic’s study because the misconduct triggered a mistrial or caused the prosecution to offer a sweetheart plea deal; for instance, when a prosecutor had improper contact with a disgruntled member of the defense team or when it appeared as if the state had been listening in on a defendant’s jail calls from his attorney.
According to case law, in order to declare a mistrial for prosecutorial misconduct, a trial must be “permeated” with bad behavior on the part of the prosecutor that “so infects the trial with unfairness as to make the resulting conviction a denial of due process.”
Judges are reluctant to risk such drastic measures.
I then came across an excellent blog called The Open File that is dedicated to publishing information on misconduct by prosecutors.
There appears to be no shortage of information on the subject. (Mike Frisch)