Wednesday, September 23, 2020
Sept. 23, 2020

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Despite misconduct, prosecutors rarely face discipline

The Columbian
Published:

SEATTLE — A prosecutor in Clallam County who wrongfully suppressed evidence violated a death-row inmate’s rights, forcing a new trial that ultimately cost taxpayers $1 million.

That prosecutor, along with dozens of others in Washington and hundreds across the country whose cases were thrown out on appeal because of misconduct, never faced discipline, an Associated Press investigation found.

Legal experts say prosecutorial misconduct has reached “epidemic” levels in the U.S. and the lack of consequences results in repeat misbehavior, millions of dollars spent to retry cases, innocent people sent to prison and further damage to a criminal justice system being criticized for the way it has handled questionable police shootings.

“We have polarized groups of people in our country who are literally waging war on each other and every time we as prosecutors fail to maintain the trust and seek justice and look unfair or discriminatory, it just fuels the violence,” said Pierce County Deputy Prosecutor Steve Merrival, who has filed complaints against the county prosecutor.

The AP reviewed 540 Washington cases that had been reversed or dismissed by the state’s appellate courts since 2012 and found 30 were thrown out because of prosecutor misconduct. Merrival’s whistleblower complaint listed 85 cases of prosecutor misconduct since 2000 in Pierce County alone.

The Washington State Bar Association has disciplined 368 lawyers since 2010; only two were prosecutors.

National studies also show sanctions are rarely imposed and when they are, they amount to a “slap-of-the-wrist,” according to the Center for Prosecutor Integrity.

The National Registry for Exonerations reports 46 percent of wrongful convictions it identified were because of prosecutor or other official misconduct and the CPI says fewer than 2 percent of prosecutors who commit misconduct are publicly sanctioned.

The exact number of cases in which an appellate court finds prosecutorial misconduct isn’t known because no agency collects that data, legal experts said.

But a 2010 study for the California Innocence Project reviewed about 4,000 cases from 1997 to 2009 and found 707 involved prosecutorial misconduct. About 20 percent resulted in reversed convictions, said Kathleen Ridolfi, the study’s author and professor at Santa Clara School of Law.

The California Bar Association disciplined 1 percent of the prosecutors in 600 cases where misconduct was found. The study said those in a position to address the problem, especially bar associations, fail to take action.

Ellen Yaroshefsky, a professor at New York’s Benjamin N. Cardozo School of Law, said the public has become more aware of prosecutorial misconduct with wrongful convictions exposed by Innocence Projects.

“There’s a lot more scrutiny,” she said, adding systemic reform is needed.

Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski wrote in a 2013 dissent that “Brady violations have reached epidemic proportions in recent years” referring to prosecutor misconduct involving the failure to disclose key evidence to the defense. He listed more than two-dozen examples.

Kozinski became incensed during a January hearing in Riverside, California, when talking about a prosecutor who committed perjury.

“Why was he not disciplined?” Kozinski asked. “What kind of encouragement does that give to prosecutors?”

Seattle criminal defense lawyer John Henry Browne said some prosecutors keep misbehaving after their cases get tossed.

The Washington Court of Appeals cited King County deputy prosecutor Cheryl Snow in 2003 for misconduct. The Supreme Court admonished Snow again in 2008, saying “a prosecutor has a duty to act impartially.”

Browne said Snow misbehaved again during a recent murder trial. She made “personal and offhand comments” while cross-examining a defense expert. Browne filed a motion asking that prosecutorial misconduct be prohibited during closing arguments. The motion was granted.

Snow acknowledged in an email that two appellate courts cited her for misconduct, but said none of her cases were reversed and she wasn’t disciplined by the state bar. She now works for a Seattle law firm.

Greg Link with the Washington Appellate Project said misconduct cited by an appellate court that doesn’t result in reversal is more common and can be worse because prosecutors take that as a green light to continue misbehavior.

Complaints to the Washington State Bar Association are confidential unless referred for formal action, therefore it’s not known how many the bar receives.

King County Superior Court Judge Ronald Kessler files a bar complaint every time an appellate court finds a prosecutor committed misconduct.

“With the bar association, if you want to get disbarred, comingle money in a trust account,” he said. “But committing misconduct and sending someone to prison, that’s not an automatic investigation?”

Kessler has filed at least 10 complaints since 2010. Only one resulted in discipline.

“Some of the reasons I’ve gotten from the bar for not disciplining the prosecutor is, ‘well, the court of appeals was wrong,” Kessler said. “I’m not sure the bar association should be second-guessing that.”

The costs of retrying cases are acute, said Maurice Possley, with the National Registry of Exonerations, a University of Michigan Law School project.

“Witnesses die. Evidence gets lost,” he said.

The cost to Texas taxpayers of 45 wrongful convictions was $8.6 million and the cost of 85 exonerations in Illinois was $214 million, according to a 2013 CPI report.

A single case in Washington cost taxpayers nearly $1 million.

Darold Stenson was sentenced to death in 1994 for killing his wife and business partner. The Supreme Court threw out the conviction, saying the prosecutor violated his rights by not giving his lawyers helpful evidence.

After his second trial, Clallam County submitted a request for reimbursement of $998,651 under a procedure that lets counties ask for help paying for aggravated murder cases. The state paid $500,000.

Dan Satterberg, the King County prosecutor, said his office has a committee that tracks appellate cases involving prosecutor misconduct and if there’s a case from his office, “we treat it as a teachable moment.”

“Nobody wants to have their name associated with a case that gets reversed because of something stupid they said at trial,” Satterberg said.

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