by Jo Ellen Nott

On July 5, 2022, the Death Penalty Information Center reported that 5.6% of all death penalty sentences in the last 50 years were reversed because of prosecutor misconduct. That percentage represents 550 innocent people who were saved from state sanctioned murder.

The Center’s executive director Robert Dunham says the percentage could be the tip of an iceberg of unethical behavior since many county justice systems are not incentivized to report or investigate unethical conduct.  Prosecutorial misconduct ranges from withholding evidence, to perjury, to coercion of confessions and witnesses, to jury stacking or to making inflammatory arguments that stretch or even fabricate the truth. 

The Death Penalty Information Center’s study found that the most common kind of misconduct was the withholding of evidence that does not support a conviction. Dunham referenced the landmark Supreme Court ruling Brady v. Maryland, which established the rule that the prosecution must turn over all exculpatory evidence that might help in the defendant’s defense, remarking that “In the Brady cases, there’s lots of evidence that gets withheld, and we frequently see the courts decide the evidence is not material. That’s their way of not enforcing it.”

Because of the public’s fascination with death penalty cases, a prosecutor faces enormous pressure to convict and get the harshest sentence possible. This dynamic lends itself particularly well to prosecutor misconduct.  Dunham asks, “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?” 

Addressing and reducing prosecutor misconduct can happen in the district attorney’s offices across the country who actively work to change their culture. Dunham points out that realistic reform is only possible when promotions are based on integrity, not conviction rates.  He points out counties with high exoneration rates are following a new trend towards criminal justice reform by electing reform prosecutors and allowing independent conviction integrity units to reinvestigate cases. 

The Center cited counties leading the way on criminal justice reforms and producing more reversals and exonerations: Pennsylvania’s Philadelphia County; Cook County, Illinois—containing Chicago; Los Angeles County, California; Clarke County, Nevada—which includes Las Vegas; Oklahoma County, Oklahoma; Cuyahoga County, Ohio—which includes Cleveland; and Mobile County, Alabama.

Source:  Law 360  

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