Pubdate: Thu, 26 Jun 2003
Source: USA Today (US)
Copyright: 2003 USA TODAY, a division of Gannett Co. Inc
Contact:  http://www.usatoday.com/news/nfront.htm
Details: http://www.mapinc.org/media/466
Author: Laura Parker

COURT CASES RAISE CONDUCT CONCERNS

Analysts look at the ethical line that's crossed when the desire to win 
turns zealous prosecution into misconduct.

The star witness in a case that has been called the worst miscarriage of 
justice in Texas history got all the headlines recently, after a judge 
found that he lied in court in order to convict 38 people -- 36 of them 
black -- on drug charges. But the district attorney in the dusty Texas 
Panhandle town of Tulia knew that undercover cop Tom Coleman was lying on 
the witness stand, and he did nothing to correct the record, according to a 
scathing, 129-page critique of the original trials written by a judge who 
reviewed the cases for a state appeals court.

Swisher County District Attorney Terry McEachern's silence, as well as his 
failure to turn over information that could have discredited Coleman, meant 
that ''it would be a travesty of justice to permit the convictions to 
stand,'' retired Dallas judge Ron Chapman said in his report. Last week, 
Chapman ordered that 12 of the defendants be released from prison.

The Tulia case is an extreme example of prosecutorial misconduct, which 
legal analysts say is not as rare as it should be in America's criminal 
justice system. It is virtually impossible to quantify how often misconduct 
occurs. But analysts say prosecutors mischaracterize, conceal or tamper 
with evidence, make inflammatory remarks or behave improperly in court 
often enough to cause concern.

Two recent research projects have shed light on the problem:

* The Center for Public Integrity, an ethics watchdog group in Washington 
studied more than 11,000 cases involving alleged prosecutorial misconduct 
since 1970. The group found that in more than 2,000 of the cases, 
convictions were reversed or reduced because of misconduct. The study found 
a pattern of misconduct by local prosecutors in nearly every state.

''Year after year, there is conduct that either leads to a new trial for a 
guilty person, which uses public resources and sabotages confidence in the 
system, or leads to conviction of an innocent person,'' says Steve 
Weinberg, who oversaw the study.

* The Innocence Project, which uses DNA testing to try to exonerate 
convicted felons, found that 34 of the first 70 defendants it had helped to 
exonerate had been subject to prosecutorial misconduct. Peter Neufeld, 
co-founder of the project, says DNA testing has provided a window through 
which prosecutors' conduct can be examined closely. ''But I assure you, it 
hasn't just happened in these cases,'' he says.

Even critics in the defense bar agree that the vast majority of criminal 
prosecutions are conducted properly, by honest prosecutors who abide by a 
strict code of ethics. But the justice system is one of those arenas, like 
medicine or airline safety, in which even the smallest percentage of 
mistakes can produce catastrophic results. The courts consider 
prosecutorial misconduct such a serious breach that they say it should 
never occur.

''A prosecutor has a higher calling than just to win. He's got a duty to do 
justice,'' says Ted Killory, a commercial litigator in Washington who 
worked on the appeals of the Tulia defendants. ''It's essential for our 
system to work that prosecutors not be just about racking up wins.''

And yet, certain prosecutors, focused on winning, sometimes cross the 
ethical line. Some who campaigned for office by touting their conviction 
rates succumb to the pressure to keep up with their statistics. Most of the 
time, defense lawyers and prosecutors say, prosecutors who bend the rules 
believe the defendant is guilty and want to put him in prison, even if the 
evidence isn't totally persuasive.

Joshua Marquis, district attorney for Clatsop County in Astoria, Ore., and 
a board member of the National District Attorney's Association, dismisses 
the theory about overzealous prosecutors who bend the rules as spin from 
the defense bar. He says prosecutorial misconduct is ''more episodic than 
epidemic.''

''We're all seeking a zero error rate,'' he says. ''Is it realistic to 
expect it? Absolutely not.''

He says prosecutors who misbehave are sanctioned by state bar associations.

''A fair trial is not only guaranteed to the defendant but to the people of 
the state,'' Marquis says. ''The lawyer for the people has to be able to 
zealously prosecute the case, and that means ethically they have to be 
zealous, too.''

The study by the Center for Public Integrity is one of the most 
comprehensive to date. Weinberg headed a team that spent three years 
researching 11,458 appellate court decisions in all 2,341 state prosecutor 
jurisdictions in the country. The team did not examine federal prosecutors' 
conduct.

In the cases studied, 223 prosecutors were cited by judges for two or more 
instances of misconduct. Two prosecutors were disbarred for mishandling cases.

''Prosecutors are the last sacred cow,'' Weinberg says. ''They are 
unaccountable. Who is the boss of the prosecutor? You could say the voters, 
but in most jurisdictions, most voters can't name the prosecutor.''

In Texas, Coleman faces trial this fall on perjury charges. McEachern has 
not been sanctioned for his role in the Tulia convictions.

In the end, McEachern may answer only to the voters. He has been in office 
since 1982. The Texas Bar Association will not say whether it is 
investigating him. The bar has the authority to suspend him or strip him of 
his law license.

The original Tulia criminal cases are being reviewed by the Texas Court of 
Criminal Appeals. If the court recommends new trials, special prosecutor 
Rod Hobson says he will dismiss the charges because they are based entirely 
on Coleman's testimony.

Coleman worked alone for 18 months in Tulia and infiltrated a local drug 
ring in the town's black neighborhood. He kept no written records, wore no 
wire, filmed no video, produced no other witnesses or corroborating 
evidence. No drugs, paraphernalia or money were seized during the arrests. 
Without his testimony, the cases would have collapsed.

It is not clear precisely how much McEachern knew about Coleman's 
background before he put him on the witness stand.

But in his report, Judge Chapman noted that McEachern ''knew or should have 
known'' that Coleman had a reputation for dishonesty, had fled bad debts, 
had been arrested for theft, had walked off previous law enforcement jobs 
and was considered untrustworthy by law enforcement officials in other 
counties. That information should have been provided to defense lawyers, 
Chapman wrote, but it was not.

McEachern did not respond to a telephone request for an interview. His 
assistant says he has been referring calls to Hobson, the special prosecutor.

During one trial in July 2000, Coleman testified that he had never been 
arrested. In fact, he had been arrested in 1998 for allegedly stealing 
gasoline.

According to his own affidavit, McEachern was aware of the arrest before 
any of the original Tulia defendants was indicted. During one of the trials 
in 2000, McEachern said he participated in Coleman's background check.

He also defended Coleman in court, noting in one of the trials that Coleman 
had been named Texas' outstanding law enforcement officer of the year in 
2000. ''If you can't believe him, well, then who can you believe?'' 
McEachern was quoted as saying at the time.

In his deposition three months ago, McEachern said he did not participate 
in the background check.

A recent hearing to reconsider four of the original Tulia convictions was 
halted when two special prosecutors appointed to handle the case agreed 
with defense lawyers that Coleman lied on the stand and that the defendants 
should be released.
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