Today's Arizona Republic publishes the first two parts of a series on prosecutorial misconduct, "The Gray Area of Courtroom Conduct." This lengthy examination is a must-read. There is a database of cases at the link.
The first article is, "Prosecutorial misconduct alleged in half of capital cases," by Michael Kiefer. There is video at the link.
Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.
A year later, he convinced a judge to send her to death row.
It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.
The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.
But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.
Milke denied confessing.
The detective had not recorded the interview, and there were no witnesses to the confession.
When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.
“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.
But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.
The second of the series is, "Prosecutors under scrutiny are seldom disciplined," also by Kiefer. There is video at the link.
Rchard Wintory was Arizona Prosecutor of the Year in 2007. Wintory had spent 20 years as an assistant district attorney in Oklahoma, another seven in the Pima County Attorney’s Office, and by 2010 had moved on to the Arizona Attorney General’s Office, where he continued to try criminal cases, especially death-penalty cases.
Now he is chief deputy in the Pinal County Attorney’s Office.
He is also the focus of an investigation by the State Bar of Arizona because a Pima County Superior Court judge referred him to the State Bar of Arizona for improper contact with a member of a murder suspect’s defense team.
Prosecutors are frequently accused of misconduct during criminal cases, and even if a trial judge or a court of appeals agrees that they acted badly, it rarely affects the conviction or sentence of the trial defendants.
Wintory calls himself an “impassioned” attorney; others might say he pushes the envelope.
In Arizona, prosecutor misconduct is alleged in half of all capital cases that end in death sentences.
Half the time, the Arizona Supreme Court agrees that misconduct occurred in those instances, but it rarely throws out a conviction or sentence because of it.
The Arizona Republic reviewed all of the Arizona Supreme Court opinions on death sentences going back to 2002.
Of 82 cases statewide, prosecutorial misconduct was alleged on appeal by defense attorneys in 42 and the court found improprieties or outright misconduct in 18 instances. But only two of those death sentences were reversed because of the improprieties, and only two prosecutors were disciplined.
Part three appears in tomorrow's Republic.
Related posts are in the prosecutorial misconduct category index.