Some journalistic epiphanies take a long time to form. In my case, 30 years. That is how long it took me to realize somebody needed to conduct a systematic examination of the nation’s 2,341 local prosecutors’ offices.
During an era when journalists tend to be skeptical about the performance of elected and appointed government officials at all levels, prosecutors qualify as the last sacred cow: assumed to be acting in the public interest, rarely scrutinized and, if covered at all, covered favorably.
In lots of newsrooms, the shorthand for the criminal justice beat is “cops and courts.” That traditional label says a lot by what it fails to mention – the prosecutor. My painfully slow epiphany is that prosecutors are the linchpin of the criminal justice system. They receive information from the police about an alleged crime before any defense attorney or judge receives information, and information is power. No case can move forward without the prosecutor’s assent. In most jurisdictions, about 95 percent of the crimes charged never reach trial; that means 95 percent of the time, prosecutors are acting as judge and jury combined, all behind closed doors. Furthermore, when a case does reach trial, no matter how wisely or unwisely judges, defense attorneys and juries act, it is usually won or lost because of the way the prosecutor presents the evidence.
Every day, prosecutors in district attorneys’ offices throughout the United States decide if people arrested by local police should be:
• Charged with a crime.
• Placed back on the streets, or jailed.
• Allowed to sign a plea agreement, or proceed to trial.
• A candidate for the death penalty if the law permits that outcome.
• Heard after imprisonment because new evidence suggests a wrongful conviction.
Counting the elected district attorney at the top of the office pyramid and the lawyers appointed by the district attorney to serve justice, there are about 30,000 prosecutors working in the United States. Many of these prosecutors are dedicated, skilled public servants. Many others are mediocre. Some should never have been allowed to wield power. But few people know much about their local prosecutors. Most of the time, in most of those 2,341 jurisdictions, journalists are nowhere to be seen as new prosecutors are hired, as veterans are promoted, as other veterans retire or are forced out.
The sacred cow syndrome blessedly appears to be fading in some newsrooms, however. One factor: In cases with DNA evidence, the number of documented wrongful convictions is approaching 200. They demonstrate like nothing else the fallibility of prosecutors. Everybody makes mistakes. But in a system supposedly devoted more to serving justice than to winning at all costs, in a system supposedly loaded with safeguards, how do prosecutors allow innocent people to be charged with a crime, indicted by a grand jury, incarcerated for months or years while awaiting trial, convicted and sentenced?
THE CENTER FOR PUBLIC INTEGRITY COMES THROUGH
Hoping to find somebody to support a national examination of prosecutors, I approached Charles Lewis at the Center for Public Integrity in Washington, D.C. Lewis is a former CBS 60 Minutes producer who had his own epiphany about 15 years ago. He left his job to start an organization that would conduct investigative journalism in the public interest, in-depth, on topics normally ignored. Against gigantic odds, the Center for Public Integrity has not only survived, but thrived.
Lewis and his staff raised money from foundations and individuals to make my idea a reality. The Center hired two individuals to work with me – Neil Gordon, a Baltimore lawyer who wanted to change careers, and Brooke Williams, a recent University of Missouri Journalism School graduate.
For three years, we gathered information about the performance of every local prosecutor’s office in the United States and about as many of the individual district attorneys as we could identify. In several dozen newsrooms, reporters have used our specific findings about the local prosecutor’s office, posted at www.publicintegrity.org at the “Harmful Error” icon, to produce insightful follow-ups. In addition to our specific findings, our general conclusions ideally will inform future coverage of prosecutors in every newsroom.
MAURICE POSSLEY’S EPIPHANY
To some degree, we stood on the shoulders of giants while conducting our research. Chicago Tribune reporter Maurice Possley is renowned today for his coverage of Cook County prosecutors who break the rules to convict the guilty, and sometimes the innocent. Possley, with colleagues Ken Armstrong and Steve Mills, changed the world in ways most journalists only dream about: Because of their prosecutorial misconduct exposes, first the Illinois governor and legislature, followed by officials in other states, imposed a death penalty moratorium as well as spearheading procedural reforms to the criminal justice system.
But until a few years ago, Possley was part of a widespread newsroom problem – indifferent coverage of prosecutors. Possley saw them one-dimensionally, the way so many other journalists do – as good guys trying to put bad guys behind bars.
Possley covered federal courts in Chicago, first for the Sun-Times, then for the Tribune. He might evaluate a prosecutor’s courtroom performance, but gave little attention to the decision-making outside of public view leading to the trial.
In 1995, Possley started covering local courts, which tend to be grittier than the federal system. He began to see the inflexibility of prosecutors as he honed his approach to trial coverage by telling each day as “a separate story with a beginning, middle and end. I tried to always balance the day with some flavor of cross-examination, sometimes saying it was unsuccessful. Sometimes the cross-examination became the lead. … Quite a few prosecutors would make remarks about my inclusion of cross-examination. They had seen (the questioning of prosecution witnesses by defense lawyers) as meaningless or not damaging their case and questioned why I would even report it.”
Possley realized that “for most prosecutors, it is a one-way street – their way. And I understood that to be a condition of the beat. Along with these realizations came the knowledge that while the prosecution does usually win, that doesn’t mean the truth got found out. There were cases where you couldn’t really tell where the truth was, and I could see that for many prosecutors, it was all about winning. Still, I mostly thought they got the right guy – some cases were just closer than others. … The thought that innocent people were being convicted or that justice was being undermined was really not on my radar.”
The epiphany Possley needed arrived during the murder trial of Rolando Cruz in DuPage County, Ill. Police and prosecutors originally said Cruz and two other men killed a 10-year-old girl. Some police officers and prosecutors believed early on that the arrests were misguided – especially after a fourth man, a convicted murderer, confessed. The DuPage County prosecutor refused to credit the confession.
In 1995, Cruz won a directed acquittal from a judge in a trial covered by Possley. After the acquittal, a court-appointed special prosecutor recommended that seven DuPage County prosecutors and police be charged with criminal offenses for their conduct.
Possley received a question from an editor: How often does it happen that a prosecutor is indicted for misconduct? Possley had no idea, so he studied decades of reporting by the Tribune and other Chicago-area news organizations. He found himself “astounded to see how prosecutor-oriented the coverage was.” During the early stages of the research, Possley continued to cover the Cook County prosecutor’s office. “Many prosecutors still thought of the beat guy and the Tribune largely as their allies. … I think many of them never imagined that the result of our reporting would be critical.”
Armstrong joined Possley to document 381 cases back to 1963, the date of the U.S. Supreme Court decision Brady v. Maryland, in which the justices said convictions could be reversed if prosecutors presented evidence they knew to be false, concealed evidence suggesting innocence, or both. The Tribune’s January 1999 series put prosecutors and readers on notice that a new era of coverage had dawned.
Then, in November 1999, Armstrong and Mills published a new revelatory series, examining murder cases in which Illinois prosecutors sought the death penalty. The journalists identified 326 reversals attributed in whole or part to the conduct of prosecutors. Armstrong and Mills wrote themed articles as part of the series, examining how prosecutors use confessions extracted through police torture, perjured testimony of jailhouse informants seeking rewards and unreliable hair/fiber analysis from law enforcement forensic laboratories.
When interviewed in July, Possley was collaborating with Mills on a new project, preparing for the launch of his second book (about a Chicago murder case) and planning his fall teaching leave at the University of Montana journalism school.
Without question, Possley has become skeptical about prosecutors. Today, he says, “I try to persuade defense attorneys to provide discovery (from the prosecutor) to me. I try to actually interview witnesses before trials. I spend more time covering pretrial motions, when significant evidence often comes out and evidence that tends to contradict the prosecution often is aired. And I adhere to the belief that not everything said is the truth, even if it’s under oath, and that many things are said as truth but with such semantic gymnastics as to be ridiculous.”
IT TAKES A VILLAGE
Possley came to his epiphany alone. When he started acting on it, though, he shared it with two reporting partners, Armstrong and Mills, who helped mine the possibilities of prosecutor coverage.
Dallas Morning News reporter Holly Becka has teamed up professionally, too. In fact, she learned last year it takes a village of journalists to provide exemplary coverage of a scandal that crosses beat lines, involving prosecutors, police and judges.
Becka, a veteran cops and courts reporter, became one of those village members when a Dallas fake-drug scandal emerged: Defendants were being charged, convicted and imprisoned for possessing or selling what appeared to be narcotics, but in fact was billiards chalk planted by police informants or police themselves. Instead of asking the right questions to halt the scam, prosecutors proceeded against the hapless defendants.
“The story started on the police beat and spilled to the criminal courts beat and then to the federal beat,” Becka said. “A senior general assignments reporter also pitched in during the early months of the scandal to look at policies in the district attorney’s office that helped lead to the scandal. … Most of the stories in the early months were written by the two then-criminal courts reporters because prosecutors were dismissing drug case upon drug case, and the effects were being felt by defendants-turned-victims, their lawyers and the court system in general. More recently, our federal beat reporter has handled the story … because of the FBI investigation and the federal civil-rights lawsuit.” Becka also credits a Morning News editorial writer, journalists at WFAA-TV and the alternative weekly Dallas Observer.
In an April 27, 2003, story that skillfully weaves together seemingly stray strands to create a new reality for readers, Becka and fellow reporter Tanya Eiserer explain how police blame prosecutors for the scandal, while prosecutors blame police. For example, prosecutors say police learned earlier than previously acknowledged that the primary drug informant lacked credibility. While corrupt informants were fooling police officers, prosecutors accepted the cases without asking the tough questions, then hammered out plea bargains with presumably guilty defendants without running the allegedly illegal seized substances through drug testing.
As stories about the scandal kept coming, Becka still had to find time to cover the routine aspects of the beat, such as profiling the Dallas assistant district attorney who was recognized as the top prosecutor in Texas. Becka used a feature lead, telling how the assistant district attorney saw prosecutors as heroes even when he was a child – heroes with the same stature as movie star tough-guy John Wayne. For 19 years, Becka explained, the child hero worshipper has been living his dream as a real-life prosecutor. Such stories inform readers of the positive and help build relationships on the beat.
Becka recently moved from the criminal courts beat to a newly created criminal justice enterprise role. “I’ve had so many people – members of the public, the criminal defense bar and even a few prosecutors – credit the media with forcing public officials here to do the right thing after the scandal erupted,” she said. “… The sentiment I’ve heard is if the media had been asleep or uncaring, innocent people would have remained in jail.”
THE VALUE OF APPELLATE COURT RULINGS
Rob Modic, a Dayton Daily News reporter since 1979, knows what the best beat reporters, including Becka, know: When keeping tabs on prosecutors, study every appellate court opinion that comments on their conduct.
The upside of studying appellate court rulings is huge: They are official records, they often contain nuggets of news amidst the normally dry prose of judges, and those rendering opinions are often former prosecutors who know first-hand what to look for when examining state conduct. An appellate ruling can be a platform for discussing a specific issue, such as whether local prosecutors regularly withhold evidence from the defense in violation of U.S. Supreme Court mandates; use jailhouse snitches as witnesses, without fully checking the snitches’ accounts or fully disclosing the quid pro quo to the defense; coach state witnesses or discourage potential defense witnesses from cooperating; cross the line during trial, perhaps during opening statements, perhaps during cross-examination, perhaps during closing arguments.
Part of a three-person criminal justice team, Modic and colleagues “get together regularly to discuss filed cases at every stage,” including the appellate stage. “We look at search warrants, motions to suppress (evidence), preliminary hearings. We talk to parties about overcharging and undercharging. We collect string, then put the twine together for a story.”
WATCH THE INTERACTIONS CAREFULLY
As a longtime St. Louis County courthouse reporter for the Post-Dispatch, Bill Lhotka knows almost all the prosecutors and defense attorneys who work opposite sides of criminal cases. Tuned-in reporters watch “for veteran prosecutors taking advantage of neophyte defense attorneys or public defenders. The reverse is also true: veteran defense attorneys running circles around new prosecutors.” Neither scenario leads to the closest approximation of the truth. Winning is ingrained in prosecutors and defense counsel, but, Lhotka says, that is no excuse for cutting corners to win a case, to obsess over percentages of victory and defeat because of career advancement plans or personal vanity.
Tim Bryant covers the St. Louis City courthouse for the same newspaper. He and Lhotka sometimes compare notes, especially because the same defense attorneys often appear in both jurisdictions. The reputation of individual prosecutors among defense attorneys and judges is usually easy to learn after trust is built on the beat, Bryant says. That information can also be supplemented through close observation. “Attendance at court proceedings early in a case may be helpful,” Bryant said. “For example, a prosecutor’s performance in a preliminary hearing or an evidentiary hearing could likely provide clues to his effectiveness. Was he prepared? Did he show proper courtesies to the judge and the opposing lawyer, especially in a proceeding where jurors are not present? Does the prosecutor have the respect of his office’s investigator and the police detectives on his case?”
Jury selection provides more evidence, but lots of reporters are absent from that stage of the trial. “Was jury selection contentious to the point that the prosecutor was accused of removing potential jurors because of their race or gender?” Bryant asked. “Then there is the trial itself. Did the defense lawyer make more than a typical number of objections? Were disputes serious enough to merit sidebar conversations with the judge, or even recesses in the trial?”
SEEK ACCESS, AND YOU MIGHT FIND IT
Access granted to journalists by district attorneys might increase understanding of the daily difficulties faced by prosecutors – and everybody wins when that occurs. But it appears that journalists rarely ask to be a fly on the wall.
Gary Delsohn of the Sacramento Bee asked. Elected district attorney Jan Scully said yes. The only restrictions: Delsohn could not write anything for his newspaper during his year inside; nobody would be quoted by name without consent; personnel matters could be ruled off-limits by Scully; Delsohn would provide periodic reports on his observations if requested. (Scully never made such a request.)
In return, Delsohn would be provided a semiprivate writing space, could wander freely, pose questions and attend meetings. “There were more than a few people in the office who thought Scully was insane,” Delsohn said, “… but for the most part people were extremely open and accessible. Prosecutors and investigators freely discussed the most sensitive aspects of their cases in front of me. I was allowed to sit in on meetings with victims, defense attorneys, judges, police and witnesses. I was almost never told something was off limits, and after I had been showing up for a few weeks, most of the resistance that I was aware of had disappeared.”
Much of what Delsohn learned appears in his book, published in August by Dutton. The book, “The Prosecutors,” subtly emphasizes Delsohn’s special access in the subtitle: “A Year in the Life of a District Attorney’s Office.” It is a primer for any outsider journalist who wants to think about how to cover prosecutors more effectively.
PROSECUTORS RARELY ADMIT THEIR MISTAKES
Ofra Bikel is a producer of documentaries for the PBS program Frontline. After turning her attention to the criminal justice system 15 years ago, she produced the “Innocence Lost” trilogy about the mishandling of child sexual abuse cases in Edenton, N.C. In 1999, her documentary about three prison inmates exonerated by DNA testing aired as “The Case for Innocence.” Last year, Frontline aired “An Ordinary Crime,” Bikel’s account of a North Carolina armed-robbery prosecution beset with problems.
Bikel says she is baffled by the refusal of the prosecutor to reopen the conviction of Terence Garner, given post-trial evidence that the wrong man is in prison. Baffled but not surprised, because Bikel has watched prosecutors in previous cases dig in.
“There are a few problems with prosecutors,” she said. “First, because it is an adversarial system, and the defense’s job is to defend their client in any way they can – within the boundaries of the law, which is quite flexible. The prosecution, as the adversary, wants to do just the opposite of the defense: Convict the defendant in any way they can. So it is a contest. The problem is that the prosecution has a double function. Besides being one side in a contest, they are supposed to represent the people and to see that justice is done. This double-headed function in a cutthroat adversarial system is very hard to maintain. Unfortunately, I have not met too many prosecutors who spend sleepless nights over the fact that they won a case but sent an innocent person to prison. The prosecutors are not villains, but they look at a case, and they see people who they think are guilty go free because of smart-ass, manipulative attorneys, and they are furious. So they, too, cut corners, and blind themselves many times to the truth, or at least to doubt.”
EXPECT TO BE VERBALLY ATTACKED BY PROSECUTORS
Edward Humes wrote about prosecutorial error and misconduct in the office of the Kern County, Calif., district attorney. The incumbent responded with a 154-page document attacking the journalist and his findings. Both used incendiary words. Humes’ book, published by Simon & Schuster, is “Mean Justice: A Town’s Terror, a Prosecutor’s Power, a Betrayal of Innocence.” The district attorney’s reply is “Junk Journalism: Correcting the Errors, False Claims and Distortions in Edward Humes’ Mean Justice.”
Humes, like Possley, took awhile to reach the realization that prosecutors are not always the good guys. First as a newspaper reporter, then as the author of high-end true crime books, Humes usually found defendants’ claims of innocence filled with holes.
He began to change his attitude while investigating the conviction of Pat Dunn, a Bakersfield educator and businessman, for murdering his wife, Sandy. Convinced after extensive research that Dunn is innocent, and appalled at what he believed to be prosecutorial misconduct in the case, Humes examined the actions of the district attorney and his deputies over several decades. The research resulted in what appeared to be questionable patterns of behavior among specific prosecutors handling specific types of cases.
Humes possessed an advantage over Bakersfield-based journalists. He was writing a book, then would probably leave the jurisdiction to pursue a different book. Beat reporters, on the other hand, who examine prosecutor conduct sometimes see sources dry up not only in the district attorney’s office, but also in other law enforcement quarters.
Investigative reporting about prosecutors’ performance, Humes said, “is likely to be met with strong, even bizarre, resistance from prosecutors, who may be prone to suggesting that anyone who criticizes their actions must be a) in league with criminals; b) in league with criminal defense lawyers; c) are criminals themselves; or d) worst of all, political liberals.”
THE HORRIBLE POWER OF SELF-DELUSION
Dorothy Rabinowitz has carved out a specialty in her place on the Wall Street Journal editorial board. That specialty: problematic prosecutions of alleged child molestation rings.
Her first Journal expose, published in 1995, centered on the Fells Acres Day School in Malden, Mass. Prosecutors charged Gerald Amirault, his sister Cheryl plus his mother, Violet, the founder of the day care center, with monstrous multiple molestations based on the word of preschoolers – and without a shred of physical evidence.
As Rabinowitz chronicled other fantastic-sounding child molestation cases in New Jersey, Florida, Washington State and California, an awful question occurred to her: What if the prosecutors did not believe in the guilt of those they brought to trial? What if they filed the charges to appease community outrage, to build support for a re-election campaign or a higher office? After all, the evidence of molestation seemed unbelievable when evaluated using common sense.
Rabinowitz worked up to raising her unpleasant question in her 2003 book “No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times.” What did the prosecutors think? she mused. “Did they actually believe in the charges they had brought, of naked children tied to trees in full public view and raped in broad daylight, as in the Amirault case; in the testimony of child witnesses who had recited obvious whoppers about robots, being stabbed with swords, and the like?”
Some prosecutors actually believe those seemingly ludicrous scenarios, and some do not, Rabinowitz concluded. Both patterns of thought are scary. One type of prosecutor cares nothing about the justice that is part of the office’s sworn duty; won-lost records are paramount. The other type of prosecutor is blinded by passion, too close to the emotional residue of little children being victimized.
“The prosecutor’s propensity to believe in the guilt of anyone accused of the crime of child sex abuse (is) overwhelming,” Rabinowitz said. “That belief (is) fueled by investigators who share the same propensity and interrogated the children accordingly.”
Steve Weinberg is a freelance magazine writer and book author in Columbia, Mo. He served as executive director of Investigative Reporters & Editors, based at the Missouri Journalism School, from 1983-1990. He teaches from time to time at the Journalism School.