STUDIES: Prosecutorial Misconduct in Death Penalty Cases

In a four-part series on the con­duct of pros­e­cu­tors in cap­i­tal cas­es, The Arizona Republic exam­ined alle­ga­tions by appel­late attor­neys that pros­e­cu­to­r­i­al mis­con­duct occurred in near­ly half of the state’s cap­i­tal cas­es since 2002. 

The study found that near­ly half of the alle­ga­tions were val­i­dat­ed by the Arizona Supreme Court, though only two death sen­tences were vacat­ed. The paper found there were sel­dom con­se­quences to pros­e­cu­tors for mis­con­duct. Of all the alle­ga­tions, only two result­ed in pros­e­cu­tors being pun­ished: one was dis­barred, the oth­er sus­pend­ed from legal practice. 

According to the Republic​’s exam­i­na­tion, six dif­fer­ent pros­e­cu­tors who were named ​“Prosecutor of the Year” since 1990 were lat­er found to have engaged in mis­con­duct or inap­pro­pri­ate behav­ior dur­ing capital trials. 

Misconduct played a key role in a death sen­tence and con­vic­tion that were recent­ly over­turned by the U.S. Court of Appeals for the Ninth Circuit. Debra Milke, who had spent near­ly 24 years in cus­tody, was recent­ly freed because the state failed to turn over impor­tant records to the defense. She may face a re-tri­al. The court under­scored the impor­tant role of pros­e­cu­tors in ensur­ing a fair tri­al: “(T)he Constitution requires a fair tri­al, and one essen­tial ele­ment of fair­ness is the pros­e­cu­tion’s oblig­a­tion to turn over exculpatory evidence.” 

In anoth­er instance of pros­e­cu­to­r­i­al mis­con­duct, Ray Krone​’s con­vic­tion in Arizona was over­turned in 1995 and he was even­tu­al­ly exon­er­at­ed in 2002 (pic­tured l., receiv­ing an award in 2013 from Kirk Bloodsworth of Witness to Innocence).