Government Misconduct and the Death Penalty
from the book
edited by Elihu Rosenblatt
South End Press, 1996
Death Penalty Information Center
"(...the prosecutor) is the representative.. . of a sovereignty.
. . whose interest... in a criminal prosecution is not that it
shall win a case, but that justice shall be done."
- Berger v United States, 295 U.S. 78 (1935)
"That requirement, in safeguarding the liberty of the
citizen against deprivation through the action of the State, embodies
the fundamental conceptions of justice which lie at the base of
our civil and political institutions. "
- Herbert v Louisiana, 272 U.S. 312 (1926)
Prosecutorial Misconduct: An Overview
When Jimmy Carter was in the White House, Gary Nelson was
convicted and sentenced to die for the 1978 rape and murder of
a six-year-old child in Chatham County, Georgia, the kind of high
visibility crime that exerts great pressure on police and prosecutors
to solve quickly.
On November 6,1991, after more than 11 years protesting his
innocence-watching time forever slip away behind him while it
moved him closer and closer to the electric chair-Nelson was released.
A free man.
It had taken his appellate lawyers, working without pay, that
many years to prove that the government's capital case against
their client rested on a foundation of official lies, the knowing
use of false testimony, and the willful suppression of evidence
in the state's possession that not only tended to support Nelson's
claim of innocence, but which pointed to the guilt of another.
Although he spent more than a decade of his life on Death
Row, Nelson might still be considered lucky. Others with equally
compelling evidence of official government misconduct remain imprisoned
in every state in the country and on every Death Row. Some, like
Roger Coleman in Virginia and Barry Fairchild in Arkansas, faced
execution despite the misconduct. [Barry Lee Fairchild was executed
on August 31,1995-E.R.]
For others, like Warren McCleskey and Bobby Francis, it is
already too late. Both men were executed in 1991.
Misconduct by the government in the pursuit of a death sentence
can take many forms. But whether it involves the use of threats
and intimidation to obtain a "confession," the use of
jailhouse informants who secretly enter into deals with the prosecution
for their testimony, or the government's unrevealed promise of
leniency for one co-defendant in exchange for his or her testimony
against another, the resulting death sentence is fundamentally
unfair, and cannot be tolerated in a society which honors the
principle that no person is above the law.
Misconduct often begins with the police. It can be as subtle
as an implied threat for failing to cooperate or as overt as the
beating of Rodney King. Often, the police are under great pressure
to act quickly, especially when the murder victim is white, prominent,
a child, or a police officer. As former head of Philadelphia's
organized-crime homicide squad Frank Friel says, "The supervisor
wants your report in. There's pressure from the victim's family.
You're working for 36 hours straight. It becomes a challenge to
prevail-a good guy versus bad guy thing.''
Often, the police develop a theory of the crime and then search
out evidence-and suspects-that support that theory. Then, when
they arrest someone, they proceed as if the suspect is already
guilty. "The mentality and the pressure are to not let the
guilty guy go free," Friel, now chief of police in Bensalem,
Pennsylvania, explains. "When you see shortcomings, you hedge.
You block out anything that doesn't fit. .. You feel you have
no obligation to bring up evidence pointing to others. Why cloud
Sometimes, the scenario is not so benign. "Two men who
claimed to have been the only witnesses to the 1978 San Bernardino
murder of a police officer's son now say they actually saw nothing,
but were pressured by police into giving false testimony that
has kept an innocent man in prison for 13 years," begins
a recent article in the Los Angeles Times. The fact that the victim
was the son of a police officer greatly increases the likelihood
of such misconduct. According to the article, one of the witnesses
gave the police what they wanted only after being handcuffed to
a motel room bed during 24 hours of questioning. Before trial
he recanted, but the district attorney allegedly covered it up
so the defense never learned of the recantation.
In the case of Barry Fairchild, the evidence is that the sheriff
and his deputies engaged in overt brutality, both verbal and physical,
against a succession of Black suspects until one of them gave
in to the intimidation and signed a confession. As is often the
case, Fairchild was the least able to withstand the assault. Mentally
disabled, he finally told the police what they wanted to hear.
Racism is often the motive for official misconduct. When the
U.S. Court of Appeals for the Eleventh Circuit reversed the death
sentence of Jimmy Lee Horton in September 1991, they singled out
District Attorney of the Ocmulgee Judicial Circuit Joe Briley
for special censure. In a succession of death penalty cases, Briley
has used his peremptory jury strikes to ensure that Black defendants
continue to be tried by all-white juries. In one case, Briley
instructed the Putnam County clerk on how to under-represented
Blacks and women in the jury pool and not get caught. The court
noted that since becoming DA in 1974, Briley has used 89.9 percent
of his jury strikes against Blacks in capital cases involving
Black defendants. Where the defendant is Black and the victim
white, that figure rises to 94.1 percent. In overturning Horton's
death sentence, the court reminded the prosecutor of his duty
to do justice, and held that the prosecutor acted unconstitutionally
to deny Blacks the "right and opportunity to participate
in the administration of justice."
In January 1990, Clarence Brandley was released after spending
nearly a decade on Death Row in Texas for a crime he did not commit.
The misconduct in that case involved every level of government,
from the police who threatened witnesses to prevent them from
testifying for Brandley, to the trial judge and the prosecutor
who held secret meetings to rehearse objections and rulings, to
the state attorney general who lied about the results of a lie
detector test. What enabled Texas officials to pursue Brandley
with such single-minded disregard for facts, fairness and basic
justice was that the victim in the case was a white school girl
who had been raped and murdered. The likely suspects were the
school's janitors, one of whom-Clarence Brandley-is Black.
In 1987, U.S. District Court Judge Perry Pickett held that
Brandley did not receive a fair trial, was denied the most basic
fundamental rights of due process of law, and did not commit the
crime for which he now resides on death row... The court unequivocally
concludes that the color of Clarence Brandley's skin was a substantial
factor which pervades all aspects of the State's capital prosecution.
. . In the 30 years this court has presided over matters in the
judicial system, no case has presented a more shocking scenario
of the effects of racial prejudice, perjured testimony witness
intimidation, an investigation the outcome of which was predetermined,
and public officials who, for whatever motives lost sight of what
is right and just.
One of the most common features of death penalty cases involves
the testimony of jailhouse informants or snitches-inmates who
swear in court that the defendant confessed to them. For people
in prison or jail, such testimony can be a powerful bargaining
chip: in exchange for it, the state will often reduce the time
they are serving or dismiss charges pending against them. Because
the possibility of leniency is a strong inducement to lie, the
prosecutor is required to tell the defense-who, in turn, will
tell the jury-when such deals are made. With that knowledge the
jury can weigh the credibility of the testimony. Misconduct occurs
when such deals are kept secret.
Warren McCleskey was singled out from among four co-defendants
by a cellmate who testified that McCleskey had admitted to him
that he was the one who pulled the trigger. The prosecutor, when
asked by McCleskey's attorney, denied that anything had been offered
in exchange for his testimony. That was a lie discovered inadvertently
10 years after he had been sent to Death Row. When it was revealed,
two jurors came forward to say they would never have sentenced
Warren McCleskey to death if they had known of the deal.
His attorneys petitioned the federal court to remedy the clear
misconduct of the prosecutor. Instead, the Supreme Court took
the opportunity to announce a new rule: except under rare circumstances,
prisoners can petition the federal courts for redress but once.
If they fail to raise constitutional abuses the first time through-even
if the failure is due to the government's misconduct-the federal
court is closed to them.
McCleskey had been through the federal court system once before,
losing 5-4 on the issue of whether the death penalty is applied
in a racially discriminatory way. His attorneys did not raise
the issue of the prosecutor's illegal acts at that time, relying
on official assurances that no deal had been offered. The Court's
new rule made clear that lawyers who trust the government to tell
the truth do so at their own peril. Or, more precisely, at their
clients' peril. Warren McCleskey was executed September 25,1991.
The unreliability of this kind of testimony was dramatically
brought home when jailhouse informant Leslie White showed how
a prisoner with intelligence and a telephone can learn enough
details about a pending case to sound convincing even if he has
never met the person he testifies against. His admission to reporters
in Los Angeles that he had fabricated a dozen confessions of others
in exchange for lenient treatment led the Los Angeles County Grand
Jury to investigate. In 1990, the grand jury's special counsel,
Douglas Dalton, reported that "Despite all the warnings of
misconduct-by admissions of the informants, notice by the courts,
and even an internal campaign within the district attorney's office-the
district attorney's office deliberately rejected taking the necessary
action which would have effectively ended these practices."
The grand jury concluded that the Los Angeles County District
Attorney's Office had "failed to fulfill the ethical responsibilities
of a public prosecutor."
Despite this, in a subsequent capital case in which the condemned
maintained that the informant's testimony against him was perjured,
the California Supreme Court held he had no right to see the DA's
files on "mere speculation." In a stinging dissent,
two justices called the ruling a "Catch-22"-prohibiting
the accused from seeing the files without concrete facts while
denying him the opportunity to get those facts. The dissenters
described the majority opinion as "a miscarriage of justice
which may return to haunt us."
Since prosecutors do not have to open their files for inspection,
no one can be sure how widespread the practice is. After canvassing
post-conviction cases in California, however, attorneys for the
California Appellate Project estimate that "close to a third
of those individuals suffering death judgments have had jailhouse
informants involved in some capacity in their cases." That
translates to roughly 100 people under sentence of death in California
and, extrapolating to the entire country, more than 800 condemned
prisoners nationwide! !
Deals with the Devil
A deadly variation of the undisclosed deal involves the use
of co-defendants. Here, instead of jailhouse informants providing
the testimony essential for a conviction or a death sentence,
it is provided by someone else implicated in the crime. It is
a common practice for prosecutors to promise leniency to-or threaten
more serious punishment for-one defendant in exchange for testimony
against another. On the eve of Thanksgiving 1991, Texas officials
were gearing up to execute Justin Lee May on the basis of just
such testimony. At May's trial, co-defendant Richard Miles testified
that it was May who pulled the trigger. May was found guilty and
sentenced to death. In exchange for his testimony, Miles was allowed
to plead guilty to a non-capital offense. Just four days before
the execution, overcome by a guilty conscience, Miles recanted
his damning testimony. In his affidavit, Miles stated:
While I was present, and was an eyewitness to the offense,
Justin Lee May was not present, nor did he participate in the
offense in any manner. All of my testimony concerning his involvement
in this crime was untrue... (The police) told me that I could
be executed if I didn't cooperate, so I decided to cooperate with
the police and tell them what they seemed to be after... Before
the trial I was afraid that if I didn't point the finger at May,
they would pin me on capital murder and I would be executed. ..
Even now, I am afraid the police will come after me and find some
way to have me locked up again. But my conscience is eating at
me, and it's time to tell the truth regardless of what may happen
May is lucky. Not only did his accuser come forward to clear
his conscience, the Fifth Circuit Court of Appeals stayed the
execution, providing time to examine the new evidence. Bobby Francis
was not so lucky.
A judge sentenced Francis to death in Florida in 1983 despite
a jury-recommended life sentence. It was Francis' third trial
for the offense. (Two earlier trial results had been set aside
because of flawed proceedings.) In the first trial, a co-defendant,
Charlene Duncan, had been convicted and sentenced to life in prison.
By the time Francis was tried a third time, Ms. Duncan, who was
serving her life sentence, was represented by the same man then
prosecuting Francis. Just before trial, as reward for her testimony
against Francis, the prosecutor filed a motion to have Duncan's
conviction and sentence vacated. When Francis was convicted and
sentenced to death, the motion on Duncan's behalf was granted.
She pled guilty to third-degree murder, was sentenced to "time
served," and was released.
State Supreme Court Justice Ben F. Overton observed that he
was "deeply concerned about the conduct of the prosecutor...
Such conduct adversely affects the credibility of our justice
system.'' It also adversely affected Bobby Francis, who was executed
in Florida on June 25, 1991.
Jim McCloskey, director of Centurion Ministries, spends all
his time investigating claims of wrongful convictions by the imprisoned.
He estimates that half the cases he sees involve alleged confessions
by one defendant to another that later prove to be false. When
he first came across this aspect of homicide cases, he could not
understand what prompted an individual to lie about someone confessing
to murder. It was explained to him quite simply by a defendant
who, like Richard Miles in the case of Justin Lee May, had falsely
testified about such a confession and later recanted. "It's
a matter of survival. Either I go away or your guy goes away.
And I ain't going away.''
Occasionally, the unreliability and unfairness of death sentences
secured on this basis reaches the conscience of elected officials
with the power to act. Anson Avery Maynard was scheduled to die
in North Carolina on January 17, 1992. Just one week before the
execution, on January 11, Governor Jim Martin commuted Maynard's
sentence to life in prison because of doubts about his guilt.
The governor's office noted that there was no physical evidence
linking Maynard to the 1981 murder for which he was sentenced
to die, and that the eyewitness testimony came from someone who
admitted his participation in the murder and, for his testimony,
was given full immunity from prosecution.
Governor Martin's commutation requires a political courage
rare in most elected officials these days. It was the first commutation
in North Carolina since that state reinstated the death penalty
in 1976. The irony is that although Maynard is no longer under
threat of execution because of doubts about his guilt, he is confined
to prison for life despite those same doubts. At least, however,
if he is later proven innocent, the state can partially rectify
There is another motive for a form of misconduct that all
of us probably engage in from time to time. It might be described
as "Cover Your Ass." When we make mistakes, even inadvertently,
it is often difficult to own up. But when those mistakes lead
to a sentence of death, covering them up adds another layer of
misconduct, deadly and deliberate.
In the U.S. government's non-capital prosecution of Leonard
Peltier for the murder of two FBI agents in 1975, the case rests
largely on the testimony of a mentally ill woman, Myrtle Poor
Bear, who swore she saw Peltier kill the agents in cold blood.
Later, she recanted the testimony, claiming the FBI threatened
to take her daughter from her if she did not testify. But when
she came forward to speak the truth the judge ruled her incompetent,
and refused to take her testimony.
When asked about the use of the coerced testimony by "60
Minutes" reporter Steve Kroft, Assistant U.S. Attorney Lynn
Crooks who prepared the government's case against Peltier, said,
"It doesn't bother my conscience one bit..(He got convicted
on fair evidence. Doesn't bother my conscience one whit. I don't
agree that there's anything wrong with that, and I can tell you,
it don't bother my conscience if we did. "
Unfortunately, this willingness to defend the indefensible
is all too common in capital cases, as a number of the examples
discussed in this report make clear.
This report is not meant to be the definitive study of prosecutorial
misconduct in capital cases. Rather, it is designed to call attention
to the fact that such misconduct is widespread, is not confined
to a single region of the country, and often leads to wrongful
convictions and even to the execution of the innocent. It is designed
to remind us that we are all implicated when the government is
guilty of illegalities, when it forgets the constitutional mandate
to "establish justice" and engages in the same kind
of acts which, if committed by individuals could be criminally
prosecuted. It is designed to remind us that every aspect of a
legal process that ends in the sentence of death for a fellow
citizen cries out for deliberate, careful review to ensure that
the sentence was obtained legally-and to prevent "the people"
from executing an innocent person.
The prosecutor in a criminal case is usually a politician-the
elected local district attorney or state attorney general-whose
client is the people as a whole. Unlike a defense attorney, whose
task it is to provide the most effective advocacy possible for
the accused, whether innocent or guilty, the people's representative
is not tasked to win a case but to do justice. When the government
sacrifices justice for a courtroom victory, the entire judicial
process is corrupted.
As a federal appeals court judge wrote in overturning a Louisiana
death sentence because the prosecutor had exculpatory evidence
in his possession that he did not reveal, "Such conduct would
be reprehensible in an ordinary beyond reprehension.'