By Jennifer Kamorowski
Lately I have been reading about wrongful convictions and prosecutorial misconduct. Many commentators on the topic have talked about the incentives for prosecutors to engage in lying and cover-ups despite knowing full well that they are sending an innocent person to be punished, or worse, to be executed. The focus of these commentators is often on the design of the institutions of the criminal justice system that encourage such behavior. But the thing I can’t get around is the question, “How far?” How far is a person willing to go to win? How far is a prosecutor willing to go to justify the killing of an innocent person? How far removed does one have to be not to feel morally responsible for death?
Many have heard about the trolley dilemma – this is the scenario in which if a lever is pulled to change the tracks, one person will be killed but five will be saved. Most people say they would pull the lever and so one person dies rather than five. The other scenario is usually one in which people are asked to push a person in front of the train to save five people. For most people, there is a difference between pulling a lever that causes a person’s death, and actually pushing a person in front of the train. At least in part, the difference in responses (although the end result is the same) comes from being physically removed from consequences of one’s decision – that is, pulling a lever or pushing a person. However, there is also the “for the greater good” argument that killing one to save five is justified. The person we are talking about now is the one who put the innocent person on the tracks, started the train in motion, and then refuses to stop it. I argue that the person in this scenario is not the same person who pulls a lever to kill one and save five; nor is this the one who is willing to push someone in front of a train to save five people. There are no five people to be saved, no “greater good” at stake – only one person who is about to be run over.
Prosecutorial misconduct is an antiseptic term for prosecutors who cheat the system by lying and concealing evidence that suggests an accused person is innocent, and/or presenting evidence they know to be false, the end result of which is to get a conviction of an innocent person. Keep in mind that there are usually co-conspirators in this effort – other prosecutors who know the game, police who lie or cover up evidence, judges who decide that evidence of innocence is not admissible at trial. Peter A. Joy in writing about prosecutorial misconduct argues that this behavior is “not chiefly the result of isolated instances of unprincipled choices or the failure of character on the part of some prosecutors” – he’s right. Because these cases are not the result of unprincipled choices or failures of character on the part of one person; most often these miscarriages of justice are the result of the unprincipled choices and failures of character by at least several people.
Alfred Dewayne Brown has been in the news recently because his case is one of the latest examples in which the prosecutor lied and withheld evidence that cast serious doubt on Brown’s guilt. Brown spent 12 years in prison, 10 of which he spent on death row before he was released in 2015. Brown was identified as one of three suspects who, in the course of a robbery of a check cashing store in 2003 killed a Houston police officer, Charles L. Clark, and Alfredia Jones, the store clerk. Brown claimed he was at his girlfriend’s house and was not involved in the robbery and murders. Brown’s alibi rested on the fact that he made two calls to his girlfriend’s place of employment from the landline in her apartment. An investigator notified the prosecutor, Dan Rizzo, in an e-mail in 2003 that phone records confirmed the two calls Brown claimed he made. This evidence was required to be turned over to Brown’s defense attorneys under the Brady rule (Brady v. Maryland (1963), 373 U.S. 83). The Brady rule requires that prosecutors turn over any evidence that might be favorable to the accused in terms of a conviction or sentence. Certainly the phone records establishing Brown’s alibi were material to Brown’s case.
But Rizzo did not turn the records over to the defense. Worse yet, in 2008, Rizzo claimed under oath that he did not withhold the phone records. Then, an e-mail released by the Harris County District Attorney’s Office on March 2 of this year established the fact that a detective told Rizzo about the phone records in 2003, well before Brown’s trial. So in 2003, a police detective and Dan Rizzo knew about the phone records – and did not turn them over. In 2008, Dan Rizzo lied about the fact that he knew about the phone records. And now, 15 years later, it appears that there will be investigations into Rizzo’s other cases to determine whether there were other violations of the Brady rule. Despite all of this, some of Rizzo’s former colleagues defended him by saying he is a “good man” who “missed some details.” Another retired prosecutor said, “I will never believe that Dan Rizzo would ever intentionally violate the Brady rule, that he would intentionally hide evidence.”
Is it really so unbelievable that a prosecutor would lie and hide evidence? If one simply looks at the facts: 1) Rizzo knew about the phone records before Brown’s trial and did not turn them over to the defense; and 2) Rizzo lied under oath about his knowledge of the phone records. The evidence of Rizzo’s malfeasance is in writing – he was told about the phone records in an e-mail in 2003. But Rizzo made a conscious decision not to turn that evidence over. He didn’t just “forget” there was evidence to corroborate Alfred Dewayne Brown’s alibi. He chose to bury that evidence and proceeded to get an innocent man convicted and sentenced to death. I can’t get around the question – how does someone get up every day and look themselves in the face knowing that they are responsible for an innocent person undergoing the psychological torture that is life on death row? Knowing he is responsible for the pending execution of an innocent man? Is prosecuting crime so far removed from the reality of creating more victims that Dan Rizzo never seemed to have a twinge of conscience about what he had done?
Beyond the personal responsibility of Rizzo, there is also evidence that the grand jury in the case, led by a Houston police officer, pressured Brown’s girlfriend, Ericka Dockery into changing her testimony by threatening to charge her with perjury and have her children taken away. Dockery was charged with perjury and held in jail for seven weeks before agreeing to plead guilty and testify against Brown at trial. Transcripts of the grand jury hearing corroborate Dockery’s claim that she was badgered and threatened by Dan Rizzo into changing her story, which corroborated Brown’s alibi. The transcripts also show how the Houston police officer who was the foreman of the grand jury and Dan Rizzo worked in tandem to intimidate Dockery into giving the testimony they wanted. Every person on the grand jury witnessed this behavior and what went on in that room – yet not one of them came forward to report what happened. The wrongful conviction of Alfred Wayne Brown was not simply the result of one bad actor – it was the result of the willingness of other witnesses to the misconduct to go along with the behavior.
How common is prosecutorial misconduct in homicide cases? In 1999, Ken Armstrong and Maurice Possley published a 5-part series in the Chicago Tribune in which they reported on homicide cases that were overturned because of prosecutorial misconduct. They found that over the course of 36 years, 381 defendants had their homicide convictions reversed due to prosecutorial misconduct. Sixty-seven of those people had been sentenced to death. In 2003, the Center for Public Integrity reported that out of 11,452 cases of alleged prosecutorial misconduct between 1970 and 2003, 2,012 resulted in dismissed charges, reversed convictions, or reduced sentences. That amounts to substantiation of misconduct in approximately 1 out of 6 cases in which misconduct is alleged. In reality, those 11,452 cases likely represent the tip of the iceberg – cases in which the misconduct was egregious and obvious enough that a remedy was pursued. What we don’t know are how many cases there are in which prosecutorial misconduct occurs but cannot be sufficiently substantiated. Many cases, like Alfred Dewayne Brown’s, only come to light many years later.
In another case, Rolando Cruz and Alejandro Hernandez were convicted in DuPage County, Illinois for the rape and murder of 10-year-old Jeanine Nicarico in 1983. Both men were sentenced to death. Shortly after the trial, a man named Brian Dugan confessed to raping and killing Jeanine, as well as two other rape-murders and three rapes. There was extensive corroborating evidence to support Dugan’s claim that he was responsible for the crime. The Illinois Supreme Court overturned the convictions of Cruz and Hernandez, but prosecutors retried Cruz and Hernandez, and again won convictions. Why? Because the evidence of Dugan’s confession was held inadmissible by the trial judge. After four years of litigating the case, the Illinois Supreme Court again reversed the conviction of Cruz. But prosecutors again brought charges against Cruz despite the fact that advanced DNA methods conclusively excluded Cruz as being involved in the rape and murder. Eventually, a grand jury indicted four sheriff’s deputies and three former prosecutors on charges of perjury and obstruction of justice. Not attempted murder – but lying and interfering with the justice system. Each and every one was acquitted.
In one way, Peter A. Joy is right when he says that prosecutorial misconduct is not chiefly the result some prosecutors making “unprincipled choices” or having a “failure of character.” Rather, it is because the people around these prosecutors either actively collude with them in securing a wrongful conviction of an innocent person, or they sit passively by as an innocent person is railroaded into being convicted for a crime he or she didn’t commit. This is not to say that every prosecutor engages in misconduct, but when they do, according to Ken Armstrong and Maurice Possley, “They do it to win. They do it because they won’t get punished.”
But I think there is something deeper that is behind it than the institutional pressures and the lack of punishment for misconduct by either prosecutors or police. Not only does convicting the wrong person leave the true perpetrator free to commit another crime – but an innocent person is also being punished for what he or she did not do. And worse yet, when an innocent person is knowingly sent to death row to be executed, it’s not just trying to maintain a winning record, or doing it because they can. There is willful and intentional action taken to kill an innocent person. Perhaps like the guards putting Jewish people into trains that would travel to Auschwitz, Sobibor, and Treblinka, prosecutors can somehow reason that they are not responsible for the fate that awaits those who are unable to escape the heavy hand of the government. Calling these cases of prosecutorial misconduct creates the distance that allows these crimes to be whitewashed. What they really are are cases of conspiracy to commit premeditated murder.
Joy, P. A. (2006). The relationship between prosecutorial misconduct and wrongful convictions: Shaping remedies for a broken system. Wisconsin Law Review 2006(2), 399-429.