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Two recent decisions from courts in the western part of the country serve as a reminder that prosecutors sometimes push constitutional limits, particularly in cases with high-profile violent crimes. The federal Ninth Circuit Court of Appeals reversed a death sentence a Nevada jury handed down in 1982, and the Idaho Supreme Court granted a twice-convicted defendant a new trial in a double homicide that took place in 1983. These old cases return for new proceedings because the trial prosecutors broke rules designed to protect due process and an individual’s right to a fair trial.

In a case from Washoe County, Nevada, the Ninth Circuit overturned Tracy Petrocelli’s death sentence and upheld his conviction for the murder of James Wilson. The Ninth Circuit found that the key issue looked remarkably similar to one the U.S. Supreme Court had already decided. In Estelle v. Smith, the Supreme Court held that a psychiatrist cannot interview a defendant and testify about that interview without notifying the defendant of his right to remain silent and the possibility that incriminating statements could be used against him. Moreover, if the defendant has already been appointed lawyers, the psychiatrist must contact them before attempting to conduct such an interview. Ultimately, the Court held that the State violated Mr. Smith’s Fifth and Sixth Amendment rights when it used the testimony of the psychiatrist in the penalty phase of Mr. Smith’s capital trial.

What happened in Mr. Smith’s case also occurred in Mr. Petrocelli’s case. Just as the Texas prosecutors asked Dr. Grigson to evaluate Mr. Smith’s competency to stand trial, the Washoe County prosecutors asked Dr. Gerow to evaluate Mr. Petrocelli’s competency to stand trial. And, just as the Texas prosecutors called Dr. Grigson as a witness in the penalty phase of Mr. Smith’s capital trial to help secure a death sentence, the Washoe County prosecutors called Dr. Gerow as a witness in the penalty phase of Mr. Petrocelli’s capital trial to persuade jurors that death was the appropriate sentence. In both cases, the State’s doctor failed to inform the defendant of his rights and failed to seek consent from the defendant’s lawyers to conduct the interview. What really struck the Ninth Circuit, however, is that the Supreme Court’s decision in Estelle v. Smith came down in 1981. Dr. Gerow conducted his interview of Tracy Petrocelli on April 20, 1982. And, “the case against Gerow’s testimony is even stronger than against Grigson’s” because the court had asked the State to organize Grigson’s evaluation, “whereas Gerow was acting at the request of the prosecutor.”

There is no doubt that Dr. Gerow’s testimony was a powerful factor contributing to the jury’s death verdict. In addition to emphasizing that he believed Mr. Petrocelli was psychopathic and had a high propensity for violence, Gerow concluded by stating that “[t]here is no cure.” This theme is one the prosecutor, Bruce Laxalt, returned to in his closing statements. The Ninth Circuit held that the State committed a “flagrant violation” of the defendant’s Fifth and Sixth Amendment rights, and the negative effect of the psychiatrist’s testimony was amplified by an erroneous jury instruction that incorrectly suggested that a life sentence for the defendant could have resulted in him being paroled.

A pointed concurring opinion by Judge Christen reveals that the Ninth Circuit was not simply worried about the introduction of the psychiatrist’s testimony. Indeed, Mr. Laxalt’s behavior was so problematic that Christen wrote, “even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief.” One fact that greatly concerned her was that the defendant had repeatedly requested psychiatric assistance, and the State exploited this request. She found, “Despite Estelle’s clear rule that the government may not circumvent Miranda by using a health care professional as an agent to interview a defendant without the benefit of defense counsel, the prosecutor responded to Petrocelli’s request for psychiatric help by sending Dr. Gerow to the jail to interview Petrocelli under the pretense of providing mental health counseling. There is no question that the prosecutor’s goal was to use the result of the interview to prosecute Petrocelli,”

Importantly, Judge Christen’s concurrence looked beyond the boundaries of this case to assess the State’s credibility in these matters more generally. She did not have to look far to learn that the very same form of misconduct happened in other cases around the same time period:

[T]he scale certainly tips when one considers that these were not isolated incidents or inadvertent mistakes. In September 1983, the same prosecutor’s office called Dr. Gerow to testify about a defendant’s future dangerousness during the penalty phase of another death penalty case, Sechrest v. Ignacio, 549 F.3d 789, 798–99 (9th Cir. 2008). In Sechrest, Dr. Gerow was originally hired by defense counsel but he switched sides to become a prosecution witness. See id. at 816. Our decision in that case explains that Dr. Gerow interviewed Sechrest without giving him Miranda warnings or otherwise informing the defendant or his counsel that he might testify for the prosecution.  See id. at 798–99.  We concluded in Sechrest that “Dr. Gerow’s testimony that [the defendant] was extremely dangerous and could not be rehabilitated likely had a substantial influence on the jury’s decision to sentence [the defendant] to death.” Id. at 813.

In a powerful conclusion, she wrote that “This misconduct was deliberate, and egregious, and it compromised the integrity of the trial to a degree warranting a new sentencing trial with or without a showing that the errors actually influenced the jury’s verdict.”

On July 3, 2017—two days before the Ninth Circuit overturned Mr. Petrocelli’s death sentence—the Idaho Supreme Court granted Mark Henry Lankford (Mr. Lankford) a new trial. Mr. Lankford and his brother Bryan were each convicted in the 1983 murders of Robert and Cheryl Bravence. Initially, both received death sentences. On the heels of a favorable U.S. Supreme Court ruling striking his down his death sentence, Bryan was ultimately given a life sentence. And, after an earlier decision required a new trial because of problematic jury instructions, Mark Henry Lankford received two life-without-parole sentences after being re-convicted in 2008.

Now, the Idaho Supreme Court’s decision puts the prosecution back in the position of deciding how to approach the case. The reason for yet another prospective trial? Prosecutorial misconduct. The Idaho Supreme Court’s opinion canvasses several claims pertaining to the Idaho County prosecutors’ suppression of evidence and failure to respect the defendant’s rights. And, though the court evaluated each claim individually, stepping back, the amount of misconduct is striking.

First, the Court considered the way in which the prosecution managed the critical testimony it elicited from Mr. Lankford’s brother, Bryan. On the stand, Bryan gave testimony that put inadmissible evidence in front of the jurors, including evidence about the defendant’s prior bad acts and prior incarcerations. According to the court, “[w]hile a prosecutor certainly cannot be held responsible for every little remark a witness might make, under the facts of this case—where the outcome of the trial turned solely on the credibility of the witnesses—presenting such prejudicial evidence could have potentially affected the outcome of the trial.” Nonetheless, the Court determined that the prosecution’s failure to prevent its witness from introducing prohibited evidence did not rise to the level of fundamental error required to warrant a new trial.

Next, the Court turned to evidence the State did not disclose about how it helped Bryan in exchange for his testimony against Mr. Lankford. The defense argued that the State violated Brady and Napue because it suppressed the fact that prosecutors arranged for Bryan to have a cell phone while in prison so he could call his wife, and that they helped coordinate communication between Bryan and his brother, Lee John. The Court found that there was “no doubt” the State failed to disclose this evidence, and that the evidence would have been favorable to Mr. Lankford (because he could have used it to impeach the State’s key witness). Looking at the way in which Bryan was otherwise “thoroughly impeached at trial,” the justices ruled that the disclosure of this additional impeachment evidence would not have made a difference at trial. Therefore, it denied Mr. Lankford’s Brady and Napue claims with respect to Bryan.

The misconduct did not end there. The Court went on to evaluate Mr. Lankford’s claim that the State suppressed impeachment evidence about another critical witness, Lane Thomas. At trial, Thomas testified that, in exchange for his testimony, the State agreed to write a letter noting his cooperation to correctional authorities. In post-evidentiary hearings, however, the defense uncovered evidence that a prosecutor told Thomas he would help Thomas “get out of the prison system” and “try to get him put on probation.” The prosecutor admitted that this evidence had not been disclosed to the defense before trial. According to the Court, “[a]ffirmative personal intervention with the [other County’s] prosecutor to assist Thomas in getting out of prison and placed on probation is materially different than offering to write a letter to correctional authorities.” As a result, Thomas’s testimony about what he was gaining by testifying was “false and misleading.” In closing argument, the prosecutor said: “Lane Thomas, basically with his life on the line, came in and testified in front of you. He had no reason to lie. He did not get a plea bargain from the State. The only thing we agreed to do was write a letter of cooperation . . . .”

The Court found that the State’s misconduct in suppressing evidence of how it would assist Thomas required it to reverse Mr. Lankford’s conviction. Thomas had been a central witness, claiming that Mr. Lankford confessed to him, and providing information showing that Mr. Lankford had the requisite intent that the State needed to win a first-degree murder conviction. In short, as the Court put it, “Thomas’ credibility as a witness was essential to Lankford’s conviction.” For this reason, the Brady violation undermined the fairness of the trial.

The Idaho Supreme Court’s opinion does not identify the prosecutors who were responsible for the misconduct and suppression of evidence. The defendant’s reply brief, available on Westlaw, mentions the names MacGregor and Albers. A footnote indicates that Dennis Albers “was the deputy prosecutor” in Mr. Lankford’s 2008 retrial. The reference to MacGregor may be to Kirk MacGregor, the head of the county’s Prosecuting Attorney’s office.

The Lankford and Petrocelli decisions underscore how damaging prosecutorial misconduct can be in the long run. Justice requires fairness, and fairness eludes trials infected by flagrant violations of the Fifth, Sixth, and Fourteenth Amendments. Localities pay, too. An estimate in Idaho County puts the prospective cost of Mr. Lankford’s third trial at over a quarter of a million dollars. In a cash-strapped jurisdiction, that is no small amount. You can be sure that the prosecutors responsible for the misconduct are not paying the price out of pocket. Instead, they are pocketing pay raises and benefitting from expanding budgets. Complying with the rules, especially in expensive and high-profile cases, is not difficult but it is important. The judicial opinions in Nevada and Idaho reflect that.

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