Killing Justice

Government Misconduct and the Death Penalty

from the book

Criminal Injustice

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.

Police Abuse

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 the issue?"

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.

Jailhouse Snitches

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 to me.

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 its error.


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.'

Criminal Injustice