We have noticed a trend that prosecutors with records of unethical behavior are also the ones getting awards bestowed on them for their good conduct.
First, there was the New Orleans prosecutor who has been named in an ethics complaint for suppressing exculpatory and impeachment evidence in a death penalty case and who was himself arrested and suspended from his job for taking a taxi in Wyoming for a drunken spin. He won the “St. Slammany Award” at his new post for his eagerness to pursue felony cases to trial.
Then there was the Arizona prosecutor who couldn’t help communicating with a defense witness even after a judge had told him to stop it. He won the state’s award for 2007 Prosecutor of the Year.
And we can’t forget the Missouri prosecutor-turned-congressmen who, when his track record of prosecutorial misconduct was yet to come to light, won both the 1992 Lon O. Hocker Award for Trial Advocacy from the Missouri Bar Association and the 2001 Distinguished Non-Alumnus Award from the University of Missouri School of Law.
Now, there’s former Lake County State’s Attorney Michael Waller in Illinois to add to the list.
Pursuing Convictions Despite Damning Exculpatory Evidence
Waller is slated to receive the Lake County Bar Association’s Justice Robert H. Jackson Award today at a ceremony in Waukegan City Hall. The Chicago Tribune reports that at least two exonerees who were wrongly imprisoned during Waller’s tenure will be protesting his award for “outstanding characteristics, prosecution history, work with the public and contributions to the quality of prosecution and the image of prosecutors,” reminding the public at a press conference of his office’s refusal to concede error even once DNA evidence had cleared their names.
One of those men, Juan Rivera, had spent 20 years in prison for a rape and murder when DNA evidence and the “questionable tactics” used by police in his interrogation led the Illinois Appellate Court to throw out Rivera’s conviction and bar Waller’s office from trying him again.
The other, Bennie Starks, also spent 20 years in prison for a crime he didn’t commit after forensic experts falsely testified against him in a sexual assault case.
Both men have launched lawsuits over the cases, with Rivera naming Mike Waller and four of his top assistants as defendants. In October last year the Tribune reported that, “Ruling on motions to dismiss Juan Rivera’s lawsuit, U.S. District Judge Harry Leinenweber let almost every allegation in the suit go forward. The ruling allows Rivera to keep trying to hold prosecutors liable for his ordeal,” adding, “A successful lawsuit against prosecutors is rare because they enjoy broad legal immunity, experts said.”
Waller’s office did not only refuse to acknowledge the meaning of DNA evidence in numerous prosecutions that the Tribune says collapsed between August 2010 and May 2012, but continued to insist on the defendants’ guilt. The judge overseeing Rivera’s lawsuit rebuffed the state’s efforts to have a defamation claim dismissed, which alleges that police and prosecutors reported to the media that Rivera was guilty even after DNA evidence excluded him as the perpetrator in the case and an appellate court had declared, “No rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
A Failure of Trust
Two years ago, the Daily Herald reported that the need to rebuild trust in the office was the top issue between candidates vying to replace Waller in the 2012 Lake County State’s Attorney election. His office lost a quarter of a million dollars in a settlement with a third exoneree, who received $6 million total from law enforcement officials for his wrongful conviction. In the lead-up to the election, a DePaul University criminal law professor asserted that the high-profile exonerations under Waller had “done serious damage to the public perception of the criminal justice system,” and that, “What you need in Lake County is a culture change.”
Despite his track record, Waller’s former deputy (who is now the Bar Association President) Steven McCollum described Waller as “an excellent prosecutor” in nominating him for the Lake County Bar Association award.
Bad Sign for Self-Regulation
Some of the above-mentioned awards were handed out before there was public concern about the recipient’s conduct, but others, like the awards given by the Lake County Bar Association and St. Tammany District Attorney Walter Reed, were given directly in the face of criticism of the prosecutor in pending bar complaints or lawsuits.
Instances of the latter provide further evidence that prosecutorial accountability cannot be achieved through the self-policing of the profession.