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When it comes to achieving prosecutorial accountability, the power of journalism is becoming increasingly clear. Take, for instance, Dale Cox’s recent departure from the Caddo Parrish, Louisiana District Attorney’s race. Over the course of more than a year, a man largely unknown outside Shreveport legal circles was brought to widespread, unfavorable attention, which, by his own admission, caused him to drop his bid to become chief prosecutor.

Yet if the culture of prosecutorial overreach and misconduct is to be truly altered, accountability must ultimately flow from the institutions charged with the supervision of these men and women’s legal behavior: state courts, state bar associations, and district attorney’s offices themselves. Dale Cox, after all, may not be running for DA, but he is still a prosecutor in Caddo Parrish, he is still trying cases, and he may yet put more people on that state’s death row.

It was particularly disappointing, in this light, to learn last week that the Arizona Supreme Court had failed once again to in any way rein in the chronic misbehavior of Maricopa County prosecutor, Juan Martinez, who we wrote about this summer, and whose sharp practices have already been the subject of considerable press and legal attention.

A Notorious Prosecutor

Martinez, who became a tabloid fixture during the media spectacle of the Jodi Arias murder trial, has a long history of hostile tactics, brinkmanship during discovery, and skirting the rules of proper argument and treatment of witnesses. You can read an extended description of how he earned this notoriety in the Arizona Republic’s excellent profile of him.

As Robert J. Smith, assistant professor of law at the UNC Chapel Hill, pointed out in Slate, Martinez is among a handful of particularly vengeful prosecutors around the country who account for a grossly disproportionate number of death sentences in their states.

In an all too familiar pattern, Martinez has also been highly lauded by his own colleagues for the results that his truculence and misbehavior “achieve,” i.e., convictions at more or less any cost. In 1999, Martinez was named Arizona Prosecutor of the Year, and in 2013 he won the Home Run Hitter Award for Outstanding Prosecution for the Arias murder conviction.

While cataloging all his past egregious conduct–routinely ignoring judges’ instructions, comparing a Jewish defense attorney to Adolph Hitler, making a jury smell a piece of clothing still ripe with decomposing flesh–is beyond the range of the present discussion, last week’s State Supreme Court decision is worth examining for what it shows both of Martinez’s now long standing modus operandi, and the Arizona court system’s failure to hold him accountable for it.

Flouting the Rules

The decision in State v. Lynch arose from an appeal of a death sentence in a 2001 murder prosecution. The defendant, Shawn Patrick Lynch, alleged Martinez committed prosecutorial misconduct in the retrial of the penalty phase of the case.

His attorneys set forth thirteen instances of Martinez crossing the line from zealous advocacy to rule breaking, ranging from ad hominem attacks on defense counsel to inserting evidence not properly introduced while speaking objections to the judge.

Prosecutorial misconduct is, of course, frequently alleged, and allegations don’t make it true. But of these thirteen allegations, the Arizona Supreme Court found that Martinez had, in fact, stepped over the line in six of the alleged instances.

  • he made improper arguments during opening statements;
  • he made improper remarks about the veracity of witnesses;
  • he asked improper and argumentative questions of defense witnesses;
  • he appealed to the fears of the jury by suggesting the jury imagine itself being “manhandled” by the defendant;
  • he misstated evidence in three separate instances, each of which the judge sustained an objection to;
  • he misstated the law by saying the defendant’s character had been determined by the convicting jury to be “depraved” and suggesting his rental of pornographic videos was further evidence of his “debasement.”

In addition to these infractions, Martinez suggested the defendant, who has hepatitis C, would jab a needle into a prison guard, thus infecting the guard, if the jury allowed a sentence of life in prison rather than the death penalty. On this count, the state supreme court agreed the prosecutor was being argumentative, but concluded, amazingly, that this constituted “relevant rebuttal” to the perfectly ordinary claim that the defendant could be safely housed in a prison.

In light of all of the above, it is worth nothing how the court opened its discussion of the legal framework for making determinations of prosecutorial misconduct:

Even when an instance of prosecutorial misconduct does not warrant reversal, an incident may nonetheless contribute to a finding of persistent and pervasive misconduct if the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant.

While you might think that the court’s own findings, listed above, make it clear that Martinez’s behavior in Lynch is just such a case of cumulative impact, you would be wrong. Astonishingly, the misconduct portion of the opinion concludes as follows:

During this retrial of the penalty phase, the prosecutor disturbingly made a number of inappropriate comments, prompting valid objections by Lynch that the trial court sustained. Although the prosecutor made some improper remarks, they did not amount to persistent and pervasive misconduct that deprived Lynch of a fair trial…prosecutorial misconduct, while present in some instances, was not so pronounced or sustained as to require a new sentencing trial.

And there you have it: the means by which Martinez, and prosecutors like him, are permitted to break legal rules, not once, but repeatedly, without being held accountable. Individual instances of rule breaking are deemed to have been “corrected” by the trial judge, and “[g]iven the presumption that jurors follow instructions,” the court concludes that the episodes “did not affect the jury verdict.”

To put it starkly: there is no legal motivation for Martinez to obey the rules of the court or the laws of evidence. In fact, the system provides the opposite motivation. Break the rules, do so again and again, but in each instance stop just short of “reversible error.” Put another way, violate a defendant’s constitutional right to a fair trial just enough to get a death sentence, but not enough to trigger a loss on appeal.

The Larger Picture

As we wrote back in July, Juan Martinez is a poster child for the kind of prosecutorial misconduct that 9th Circuit Judge Alex Kozinski has recently been calling out in the press, in court, and in a law review article.

What is most disturbing about the Martinez situation, however, is not his egregious behavior–in that, alas, he is hardly alone. It is the fact that, while his conduct has been recorded in the press, and while he has been chastised by some Arizona courts for his behavior, the court system as a whole, as evidenced in Lynch, and other Arizona Supreme Court decisions, has permitted him to continue breaking rules, and thus winning convictions while cheating.

From which we can only conclude that still more public attention must now be brought to Juan Martinez and the Maricopa District Attorney’s Office, until the actors in the system responsible for disciplining him are shamed into doing their jobs.

Why must we do this?  The last line of the Arizona Republic’s profile of Martinez answers that question best.

‘All the young prosecutors want to be like Juan Martinez now,’ said Alan Tavassoli, an attorney with the Maricopa County Public Defender’s Office. ‘He’s a role model.’

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