Overview
The Death Penalty Information Center has found that a sizable portion of all death sentences that have been imposed since 1972 have been overturned because of prosecutorial misconduct. Yet, many instances of misconduct go unaddressed and most prosecutors who commit misconduct are not held accountable.
DPIC catalogued every known death sentence that was reversed because of prosecutorial misconduct and every exoneration in which prosecutorial misconduct was present (hereinafter “misconduct exoneration”). Building upon DPIC’s past research and data from a variety of other sources, DPIC has identified more than 550 capital prosecutorial misconduct reversals and misconduct exonerations. This means that more than 5.6% of all death sentences imposed since 1972 were reversed because of prosecutorial misconduct or resulted in a misconduct exoneration.
The dataset highlights the prevalence of prosecutorial misconduct in exoneration cases. More than 100 of the sentences in the dataset are exonerations in which the wrongful convictions were affected by prosecutorial misconduct. This reinforces the findings in DPIC’s 2021 Special Report: The Innocence Epidemic, which found that 69% of death-row exonerations have involved official misconduct by police, prosecutors, or other government officials.
Scope
DPIC attempted to identify every death sentence overturned because of prosecutorial misconduct or that resulted in a misconduct exoneration. Because death sentences are the relevant metric, some people who were victims of serial misconduct at multiple stages of their cases appear more than once. For example, if a defendant’s initial capital conviction was reversed because of prosecutorial misconduct, and then was sentenced to death again in a retrial or resentencing proceeding that was reversed because of new misconduct, we counted that as two death sentence reversals. Most famously, Curtis Flowers was tried six times by the same prosecutor which resulted in two mistrials and four reversals on prosecutorial misconduct grounds. Flowers is included in the dataset four times — once for each prosecutorial misconduct reversal.
The dataset is narrowly focused, documenting only capital-case reversals and exonerations, but not every instance in which prosecutorial misconduct occurred. This dataset includes cases in which the capital conviction was reversed, leading to a completely new trial, and cases in which just the death sentence was reversed, leading to a new sentencing proceeding. Cases in which misconduct was found in both the guilt and penalty phases of a single trial are counted only once. Cases in which a court found prosecutorial misconduct but dismissed it as “harmless error” were not included in the dataset, nor were cases in which a defendant alleged prosecutorial misconduct but the court granted relief on other grounds without reaching the misconduct claims.
The nature of prosecutorial misconduct cases makes it difficult to rank one county or state as worse than another. The number of misconduct reversals or exonerations in a state or county depends on a combination of factors, including the prevalence of misconduct, how much misconduct is discovered, and how willing courts and other decisionmakers are to reverse trial outcomes or exonerate individuals in cases involving prosecutorial misconduct. For example, Philadelphia County, Pennsylvania has the most instances of prosecutorial misconduct reversals and exonerations, but while this documents a high rate of misconduct in Philadelphia, it does not necessarily signify that Philadelphia prosecutors engaged in more misconduct than prosecutors in any other county. The large number of documented misconduct reversals could be a reflection of the high quality work of the institutional capital defense organizations in Philadelphia in investigating and exposing misconduct, the creation of a conviction integrity unit in the Philadelphia District Attorney’s Office devoted to correcting past injustices, the receptiveness of county, state, and federal courts governing Philadelphia to address misconduct claims, and the thoroughness of DPIC’s information regarding Philadelphia capital trials, including access to unpublished trial court opinions. In short, the absence of documented cases of capital convictions or death sentences reversed for prosecutorial misconduct does not equate to the absence of misconduct in capital prosecutions.
Methods
When collecting data for this study, we started by searching for potential cases that met our criteria for a prosecutorial misconduct reversal. We gathered data from various datasets, legal resources, and studies analyzing prosecutorial misconduct. DPIC staff and interns conducted on-line research of legal databases to discover court opinions in which capital appellants alleged prosecutorial misconduct, as well as independent legal research to find additional appellate reversals for prosecutorial misconduct in high-use death penalty states. External information sources included the Open File archive, the Broken System project at Columbia Law School, case lists maintained by the Habeas Assistance and Training (HAT) Project, and data from researchers and litigators across the country.
Categorization
Despite ethical and constitutional obligations to pursue justice while protecting constitutional rights, prosecutors have engaged in a wide variety of misconduct in capital cases. The study classifies misconduct into seven prevalent categories and a catchall category of “other” that encompasses a number of less common types of misconduct reversals. These categories are: withholding favorable evidence; jury discrimination; improper argument; improper questioning; false evidence; improper evidence; and violations of the right to counsel. Some cases involved multiple types of prosecutorial misconduct, so a single misconduct reversal or exoneration may be listed under several different categories.
Withholding favorable evidence: This category includes cases in which the government improperly withheld evidence favorable to the defendant. This includes violations of the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland. A Brady violation occurs whenever the government withholds evidence that is favorable to the defense, but it results in a reversal only if a court deems the violation to have been material to guilt and/or punishment. Materiality is measured by whether there is a reasonable probability that the outcome of the trial or penalty phase would have been different if the evidence had been disclosed to the defense. This category also includes cases in which the prosecution failed to correct false evidence presented by state witnesses. Joe D’Ambrosio’s case provides a notable example of a Brady violation. D’Ambrosio was exonerated in 2012 after spending 23 years on Ohio’s death row. The prosecution admitted to withholding multiple pieces of evidence including physical evidence that could be tested, a motive for a prosecution witness to have committed the murder, and witness statements about the date of the murder and who committed it. A federal district court barred the state from retrying D’Ambrosio because the state action of “[holding] D’Ambrosio on death row, despite wrongfully withholding evidence that ‘would have substantially increased a reasonable juror’s doubt of D’Ambrosio’s guilt’” was of an “extraordinary” nature.
Jury Discrimination: This includes cases in which the prosecution excludes jurors on the basis of race, sex, or religion in violation of Batson v. Kentucky and its progeny. Timothy Foster’s case illustrates jury discrimination in death penalty trials. Foster was sentenced to death in Floyd County, Georgia in 1987. Foster is a Black man who was tried by an all-white jury. His conviction was overturned by the U.S. Supreme Court in 2016 because prosecutors improperly exercised their discretionary jury strikes on the basis of race to exclude African American jurors. Foster obtained the prosecutors’ jury selection notes, which showed that prosecutors had highlighted the names of each of the Black prospective jurors in green on four different copies of the jury list; circled the word “BLACK” next to the “Race” question on the juror questionnaires of five Black prospective jurors; identified three Black prospective jurors as “B#1,” “B#2,” and “B#3”; and ranked the Black prospective jurors against one another in case “it comes down to having to pick one of the black jurors.” The Supreme Court pointed out that, “[e]vidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination.” The reasons given by prosecutors for striking one Black juror, Marilyn Garrett, included her age and the fact that she was divorced, but they allowed three out of four divorced white jurors and white jurors of similar age to Garrett to serve.
Improper Argument: This is a broad category that encompasses situations where the prosecution makes inflammatory, inappropriate, or unconstitutional statements during the guilt or sentencing phase of the trial. A notable example of a death sentence being overturned because of an improper argument is the case of Dale Edward Flanagan in Clark County, Nevada. Flanagan’s death sentence was overturned twice because the prosecutor made prejudicial arguments. In 1988, the Supreme Court of Nevada highlighted six instances of improper arguments by the prosecutor warranting reversal, including that the prosecutor “weave[d] in an inappropriate appeal to passion” when the prosecutor stated sweet things he remembered about his grandmother before discussing how Flanagan killed an elderly couple. Flanagan was again sentenced to death, but his sentence was again overturned because the prosecutor argued that Flanagan’s occult beliefs and membership in a coven were examples of his bad character. The Supreme Court of Nevada ruled that the prosecutor’s use of Flanagan’s occult beliefs violated his First Amendment right to Free Exercise.
Improper Questioning: Like Improper Argument, this category is also broad and encompasses instances where the prosecution asks inflammatory, inappropriate, or unconstitutional questions of a testifying witness. Joseph Green’s case provides a notable example of improper questioning. Green was sentenced to death in Bradford County, Florida in 1993. In 1996, the Supreme Court of Florida overturned Green’s conviction due in part to the prosecutor’s improper questioning regarding a witness’ history of alcohol use. On direct examination, the witness testified that she had not been drinking when she witnessed the murder. On cross examination, the prosecution inquired about her history of alcohol use and elicited from the witness that she was a recovering alcoholic and had been coming from an Alcoholics Anonymous meeting when she witnessed the murder. The Court held that evidence of witness drug or alcohol use for impeachment purposes is impermissible unless it is used to demonstrate that the witness was under the influence of drugs/alcohol at the time they witnessed the event in question, or such evidence of prior use demonstrates a witness’ inability to credibly testify about what they saw. As there was no showing that the witness’ prior alcohol use served either of these purposes, this line of questioning was impermissible. Green was later exonerated when, on retrial, the court found that the state’s star witness was incompetent to testify. This dismissal of testimony, coupled with the fact that the prosecution could not present any physical evidence linking Green to the crime, led the circuit court judge who had originally sentenced Green to die to dismiss all charges, saying that there was no evidence tying Green to the murder.
Improper Evidence: This category involves instances in which the prosecution presents inadmissible evidence and/or expert evidence not supported by scientific rigor, such as the now-discredited use of bite mark evidence. Robert DuBoise’s case provides a notable example of the use of improper evidence. DuBoise was exonerated in 2020 after being in prison for 37 years for a Florida murder and rape conviction that was based on junk-science bite-mark evidence, and false jailhouse witness testimony. The forensic odontologist who testified at trial, Dr. Souviron, had previously said, “If you tell me that is the guy that did it, I will go into court and say that is the guy that did it,” at the International Association of Chiefs of Police. The “bite mark” that led to DuBoise’s conviction was not even a bite mark at all. Further, the police allegedly conspired with the jailhouse informant to produce false testimony at trial.
False Evidence: This category includes cases in which, during trial, the prosecutor presents or fails to correct evidence they know to be false. A notable example of false evidence being presented by prosecutors is the case of Kenneth Simmons who was sentenced to death in Richland County, South Carolina in 1996. Simmons was granted a new trial in 2017 because prosecutors had presented false DNA testimony that “severely deprived” Simmons of his due process rights. During the trial, the prosecution called an expert witness that offered false and misleading DNA testimony that purported to link Simmons to the murder. The judge that granted Simmons a new trial said that the prosecution’s “misrepresentation of the strength of the DNA evidence to the jury” was “overwhelming.” The judge also wrote that the prosecution had presented the jury with “confusing, misleading, and inaccurate” information about the DNA evidence, including showing the jury a chart that contained fabricated DNA results, using the chart to make additional incorrect claims about the DNA evidence during closing arguments, and falsely arguing that Simmons was the only possible source of the DNA.
Violation of Right to Counsel: This includes cases in which the prosecution introduces evidence that the prosecution helped elicit in violation of the defendant’s right to counsel or that the prosecutor knew was gained in violation of the defendant’s right to counsel. For example, John Satterwhite’s Texas death sentence was overturned by the United States Supreme Court in 1988 because Satterwhite’s Sixth Amendment right to counsel was violated. The prosecutors did not inform Satterwhite’s attorneys that they were having a psychiatrist evaluate Satterwhite for competency to stand trial, sanity at the time of the crime, and future dangerousness. The prosecutor then called the psychiatrist to testify during the penalty phase hearing. The Supreme Court ruled that the psychiatrist was a key witness for determining future dangerousness as the only licensed physician to testify, and the prosecutor placed significant weight on his testimony during closing arguments to the jury. Consequently, the Supreme Court found it impossible to say beyond a reasonable doubt that the psychiatrist’s testimony on future dangerousness did not influence the jury.
Other: This category includes a variety of cases such as double jeopardy violations, conflicts of interest, prosecutorial involvement in coerced confessions, and other cases where the reversal is due to improper acts of the prosecutor. Clinton Young’s case is an example of a reversal due to a conflict of interest. Young’s conviction was vacated in 2021 because the prosecutor on his case also was working as a law clerk for the judge presiding over the case. Assistant District Attorney Ralph Petty was one of the prosecutors on Young’s case, while also working as a clerk, conducting legal research, and making recommendations to the presiding judge. The Texas Court of Criminal Appeals ruled this was a clear conflict of interest. Petty surrendered his law license and, in an April 13, 2021, order prohibiting Petty from practicing law in Texas, the Texas Supreme Court said the termination of Petty’s license was “in the best interest of the public [and] the profession.”