Michael Kiefer of the Arizona Republic newspaper has a terrific new piece up – the first in a series – about prosecutorial misconduct in Arizona. I recommend reading the entire article. (Link here.) The article focuses on capital cases and includes a useful database of all 82 Arizona cases that have ended in a death sentence since 2002 that have completed their direct appeal to the Arizona Supreme Court. (Link to the database here.)
A few reactions:
(1) Arizona death penalty cases are absolutely rife with prosecutorial misconduct. As Kiefer points out, since 2002, defense attorneys have alleged prosecutorial misconduct in “half” of cases that ended in a death sentence, and in “nearly half” of those cases, the Arizona Supreme Court agreed. In other words, since 2002 there is prosecutorial misconduct in nearly a quarter of Arizona death penalty cases. That is stunning.
(2) The Arizona Supreme Court knows that prosecutors are engaging in this misconduct, and it doesn’t care enough to do anything meaningful about it. Though the Arizona Supreme Court has found prosecutorial misconduct in nearly a quarter of death penalty cases since 2002, it only overturned the convictions in two of those cases.
To put it another way, even in the cases where the Arizona Supreme Court itself has found that prosecutors engaged in misconduct, ~88% percent of the time, it has affirmed the conviction anyway. No wonder there is so much misconduct in Arizona capital cases! When prosecutors violate the Constitution of the United States and the rules of professional responsibility, the Arizona Supreme Court identifies the misconduct and then fails to meaningfully address it.
(3) The Arizona system for disciplining attorneys is broken. According to the article, of all of the prosecutors of cases in their dataset in which the Arizona Supreme Court found misconduct, only two were disciplined. This represents a huge failure of the Arizona Bar which is tasked with investigating misconduct.
(4) There is a particular problem with misconduct at the Maricopa County (Phoenix) Attorney’s Office. Among the Arizona Republic’s dataset, there were more cases of misconduct in that office than in all of the other county prosecutor offices in Arizona combined. Given the large population of Maricopa County and the unusual number of capital prosecutions that that office pursues, the skewed numbers are not as surprising as they might otherwise be, but clearly there is a culture of unethical behavior among the homicide prosecutors in the Maricopa County Attorney’s Office. Reporters need to ask County Attorney Bill Montgomery what he is doing to address this.
(5) A number of the prosecutors are repeat offenders. In the Maricopa County Attorney’s Office several of the prosecutors – among them Jeanette Gallagher, Juan Martinez, Vince Imbordino, and Cleve Lynch – prosecuted more than one case in which the Arizona Supreme Court later found misconduct. When there is no consequence for unethical behavior, there is no incentive for unethical prosecutors to change their behavior.
(6) Many of the prosecutors that have been found to engage in misconduct in Arizona capital cases are considered model prosecutors within the profession. The Arizona Republic article contains this fact: “Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials.…” That is totally stunning.
(7) There are real human consequences to all of this. Just ask Ray Krone. He was wrongfully convicted and initially sent to death row in 1992 in a case tainted with prosecutorial misconduct. In 2002 Krone was exonerated. (He later sued Maricopa County and the city of Phoenix and settled for $4 million.) And just ask Debra Milke. Earlier this year a federal court threw out her conviction and death sentence because of the state’s misconduct in her case, including the failure to disclose exculpatory evidence that Milke is entitled to under the U.S. Constitution.
Michael Kiefer’s terrific article is the first of a series. We at the Open File look forward to subsequent installments.