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Michael Kiefer’s series highlighting prosecutorial misconduct in Arizona (“The gray area of courtroom conduct,” Oct. 27-30) has caused a stir in the Arizona legal community.

Prosecutors hit back at Kiefer’s report in an opinion editorial (“Hard-working prosecutors don’t deserve this ‘hack job’,” Nov. 1) claiming that the criminal justice system is “so overloaded with protections” that it works 99.996 percent of the time. County attorneys and city prosecutors who authored the piece said that oversight of prosecutor conduct is built into the system at every level. In fact, the prosecutors claim, the system is built for defense attorneys because there are special ethical rules that apply only to prosecutors.

Arizona prosecutors try to reframe the trail of cases involving prosecutorial misconduct in their state as evidence of the system working:

“The 15-year-old national study of 310 cases overturned because prosecutors withheld evidence has no context; these are a tiny fraction spread over 30 years. More telling is that these cases were reversed, proving that the system works when a prosecutor blows the bright line.”

Bill Montgomery, the County Attorney for Maricopa County, was outraged in his opinion piece which appeared in the Arizona Republic five days later (“Prosecution series did more to insult than inform,” Nov. 6). He opened:

The Arizona Republic’s series on prosecutors did more to demean and insult the men and women responsible for holding criminals accountable on behalf of Maricopa County than it did to contribute to a meaningful discussion of capital litigation and how our justice system actually works.

Montgomery peppered his piece with potshots at Kiefer (“I guess you need to conduct trials rather than just watch them to know that”) and pushed the spotlight back onto defense attorneys (“39 of the 82 cases in the database include allegations of ineffective assistance of defense counsel, three of which led to a reversal of a conviction or sentence. Kiefer does not tell us if these defense attorneys faced consequences.”)

Montgomery, who is presiding over the prosecution of Debra Milke, says he takes his duty to ensure the ethical behavior of his prosecutors seriously, bolstering his internal training program, meeting with supervisors, and giving his Ethics Committee the power to refer prosecutors to the state Bar.

But the President-elect of Arizona Attorneys for Criminal Justice, David Euchner, countered Montgomery and his colleagues’ message that Kiefer exaggerates the problem of prosecutorial misconduct, reiterating Kiefer’s conclusion: “Some prosecutors, aware of the judiciary’s reticence to reverse convictions, knowingly commit prosecutorial misconduct to increase the chance of convictions.” (“Prosecutors’ group doth protest series too much,” Nov. 11).

Though the steps Montgomery has taken are positive, Euchner says, the Arizona Prosecuting Attorneys’ Advisory Council has a history of rewarding prosecutors who are later found to have commited grave misconduct, reinforcing the cultural impetus to seek convictions at all costs.

Follow The Open File on Twitter: @openfilesite.





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