District Attorney. State’s Attorney. Commonwealth’s Attorney. County Attorney. Local prosecutors’ job titles may differ from state to state, but they all share one basic function: to act as the public’s advocate in the resolution of criminal cases.
Prosecutors wield tremendous power. After a suspect is arrested, they act as de facto judge and jury, deciding whether to charge the suspect with a crime, whether to offer a pre-trial deal, and, if so, the terms of the deal. In most jurisdictions, at least 95 percent of the cases that pour in from the police every day never reach a jury. The only trial those defendants receive takes place in the prosecutor’s office.
The National District Attorneys Association estimates there are 27,000 local prosecutors in the United States today, spread throughout 2,341 jurisdictions. In many of these, especially the less populous ones, local prosecutors sometimes receive advice, guidance and even courtroom assistance from lawyers in the state attorney general’s office. In three states—Delaware, Alaska and Rhode Island— the attorney general is the local prosecutor. When a conviction is appealed, the attorney general’s office typically gets involved as a matter of course. So, it is common to hear defense lawyers praise or criticize assistant attorneys general much as they do district attorneys. See the National Association of Attorneys General Web site.
The top person in the office—elected in most jurisdictions, appointed in some—has a difficult job that becomes more difficult with each passing year. That is especially so in major metropolitan areas, where the top prosecutor must manage hundreds of lawyers and support staff, as well as deal with horrific crimes almost every day. The criminal justice system involves the complex interaction of all three branches of government (legislatures that write laws, executive branch officials—including prosecutors and police—who enforce them, and judges who interpret them). Further, crime rates vary from state to state and from city to city, or city to town. Comparisons of one jurisdiction with another are thus difficult to make.
For more than three years, the Center for Public Integrity studied the conduct of local prosecutors, trying to understand their actions within the context of a very difficult job. Center researchers analyzed every accessible state appellate court opinion, trial court ruling and state bar disciplinary filing back to 1970 addressing allegations of prosecutorial misconduct. Researchers supplemented these findings with additional cases not reported in court records but available through media accounts or learned of through interviews and correspondence with journalists, inmates, defense lawyers, state bar disciplinary counsel, judges and other sources.
The Center found the vast majority of opinions by searching the Lexis and Westlaw legal databases for the phrase “prosecutorial misconduct,” a widely-used legal term that encompasses various bad acts by prosecutors, including withholding evidence, striking potential members of a jury on the bases of race or sex, or making improper opening or closing arguments. However, many cases involving acts that are arguably “prosecutorial misconduct” are not labeled or indexed as such by the court or the case law publishers. Generally, judges tend to limit the term to describe a particular kind of misconduct—namely, improper opening or closing arguments at trial. Thus, cases involving other acts that impinge on defendants’ constitutional rights, such as Brady violations or subornation of perjury, were not discovered in the initial search.
Center researchers expanded their queries to find additional cases. They read the cases cited in the opinions located in the initial search. (The American legal system is based on precedent, so scattered throughout most opinions are citations to earlier cases that are used by the court to support their arguments and holdings.) The more thorough citation-check located dozens—sometimes even hundreds—of additional opinions per state for inclusion in our database.
Center researchers read 11,452 opinions dating from 1970. In 2,012 of them, appellate court judges reversed or remanded indictments, convictions or sentences due, in whole or in part, to prosecutorial misconduct. 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. The reversals, remanded cases, and dissenting opinions have been entered into an online database. It is important to note that the findings of misconduct were made by appellate court judges, and not by Center researchers.
The Center’s listing of mistrials and appellate reversals is by no means complete. While legal databases like Lexis and Westlaw contain appellate rulings, some remain unpublished—and thus would not be part of any legal database. And, short of visiting every courthouse in the country, there is no way to determine how many cases are dismissed or ruled mistrials by trial judges (thus never reaching the appellate courts) because of a prosecutor’s misconduct.
In most of the opinions in the database, appellate judges do not name the prosecutor whose conduct—or misconduct—led to the reversal. When the prosecutor was not named, Center researchers contacted court clerks, district attorneys’ offices, defense attorneys, and scanned local news sources to try to determine the name of the prosecutor in the case. To verify the information, researchers contacted the prosecutor directly. To determine the elected or appointed prosecutor in charge of the office at the time the misconduct occurred, researchers relied on public records.
As the cases in the Harmful Error database amply demonstrate, prosecutorial misconduct can happen at any stage of the criminal justice process—before, during and sometimes even long after the trial.
Project manager: Steve Weinberg is a book author, magazine feature writer, and arts reviewer who lives in Columbia, Mo. After graduating from the University of Missouri Journalism School in 1970, he worked eight years as a newspaper and magazine staff writer. Since 1978, he has been freelancing. From 1983-1990, he also served as executive director of Investigative Reporters & Editors, an international journalists’ organization with headquarters in Columbia, and edited the organization’s magazine through 1999. Since 1978, he has taught basic reporting, investigative reporting, critical reviewing, and feature writing off and on at the Missouri Journalism School. Weinberg is the author of seven nonfiction books, including a biography of Armand Hammer published by Little, Brown in 1989. Currently, Weinberg is completing a biography of Ida Tarbell under contract to W.W. Norton.
Deputy project manager: Neil Gordon graduated from the University of Delaware in 1992 where he was a member of Phi Beta Kappa and the Golden Key National Honor Society. In 1995, he graduated cum laude from the University of Baltimore School of Law. Until May 2000 when he joined the Center for Public Integrity, Gordon was an associate at the Baltimore Law Offices of Peter G. Angelos where he worked on several tobacco cases representing various parties, including the state of Maryland, who were suing the tobacco companies.
Writer: Brooke Williams graduated from the University of Missouri School of Journalism in December 2001. While attending college, she worked as a police and courts reporter and a sports reporter for the Columbia Missourian, a morning newspaper. From September to December 2001, she was the Washington DC correspondent for the Daily Herald, a suburban Chicago newspaper, and the Topeka Capital-Journal, a Kansas newspaper. She joined the Center for Public Integrity staff in early 2002.
Researchers: Caleb Gauen, L’Kenya Jackson, Kathleen Liu, Julia Picard, Sara Towles, Rebecca Wein
Research Assistance: Agustín Armendariz, Ben Coates, Bob Fagen, Morgan Jindrich, Daniel Lathrop, Alicia Oman, Katharine Widland
Executive director: Charles Lewis
Managing editor: Bill Allison
Deputy managing editor: Teo Furtado
Database editor: Aron Pilhofer
Research editor: Peter Newbatt Smith
Web developer: Han Nguyen
Graphic artist: Jonathan Werve
IT Manager: Javed Khan