Viewing the Tip of the
Prosecutorial Misconduct Iceberg
Court cases raise conduct concerns:
Thursday, June 26, 2003
Analysts look at the ethical line that's
crossed when the desire to win
turns zealous prosecution into misconduct The
star witness in a case that
has been called the worst miscarriage of justice
in Texas history got all
the headlines recently, after a judge found that he
lied in court in order
to convict 38 people -- 36 of them black -- on drug
But the district attorney in the dusty Texas Panhandle town of
Tulia knew that undercover cop Tom Coleman was lying on the witness stand, and
he did nothing to correct the record, according to a scathing, 129-page critique
of the original trials written by a judge who reviewed the cases for a state
Swisher County District Attorney Terry McEachern's
silence, as well as his failure to turn over information that could have
discredited Coleman, meant that ''it would be a travesty of justice to permit
the convictions to
stand,'' retired Dallas judge Ron Chapman said in his
report. Last week,
Chapman ordered that 12 of the defendants be released from
The Tulia case is an extreme example of prosecutorial misconduct,
which legal analysts say is not as rare as it should be in America's criminal
justice system. It is virtually impossible to quantify how often misconduct
occurs. But analysts say prosecutors mischaracterize, conceal or tamper with
evidence, make inflammatory remarks or behave improperly in court often enough
to cause concern.
Two recent research projects have shed light on
* The Center for Public Integrity, an ethics
watchdog group in Washington studied more than 11,000 cases involving alleged
prosecutorial misconduct since 1970. The group found that in more than 2,000 of
the cases, convictions were reversed or reduced because of misconduct. The study
found a pattern of misconduct by local prosecutors in nearly every
''Year after year, there is conduct that either leads to a new
trial for a
guilty person, which uses public resources and sabotages
confidence in the system, or leads to conviction of an innocent person,'' says
Steve Weinberg, who oversaw the study.
* The Innocence Project, which
uses DNA testing to try to exonerate
convicted felons, found that 34 of the
first 70 defendants it had helped to exonerate had been subject to prosecutorial
misconduct. Peter Neufeld, co-founder of the project, says DNA testing has
provided a window through which prosecutors' conduct can be examined closely.
''But I assure you, it hasn't just happened in these cases,'' he says.
''A prosecutor has a higher calling than just to win. He's got a
duty to do
justice,'' says Ted Killory, a commercial litigator in Washington
who worked on the appeals of the Tulia defendants. ''It's essential for our
system to work that prosecutors not be just about racking up wins.''
yet, certain prosecutors, focused on winning, sometimes cross the
line. Some who campaigned for office by touting their conviction
succumb to the pressure to keep up with their statistics. ....
The study by the Center for Public Integrity is one of the
comprehensive to date. Weinberg headed a team that spent three
researching 11,458 appellate court decisions in all 2,341 state
jurisdictions in the country. The team did not examine federal
In the cases studied, 223 prosecutors were cited by
judges for two or more instances of misconduct. Two prosecutors were disbarred
for mishandling cases.
''Prosecutors are the last sacred cow,'' Weinberg
says. ''They are
unaccountable. Who is the boss of the prosecutor? You could
say the voters, but in most jurisdictions, most voters can't name the
In Texas, Coleman faces trial this fall on perjury charges.
McEachern has not been sanctioned for his role in the Tulia
In the end, McEachern may answer only to the voters. He has
been in office since 1982. The Texas Bar Association will not say whether it
investigating him. The bar has the authority to suspend him or strip him
of his law license.
The original Tulia criminal cases are being reviewed
by the Texas Court of Criminal Appeals. If the court recommends new trials,
special prosecutor Rod Hobson says he will dismiss the charges because they are
based entirely on Coleman's testimony.
Coleman worked alone for 18 months
in Tulia and infiltrated a local drug
ring in the town's black neighborhood.
He kept no written records, wore no wire, filmed no video, produced no other
witnesses or corroborating
evidence. No drugs, paraphernalia or money were
seized during the arrests. Without his testimony, the cases would have
It is not clear precisely how much McEachern knew about
Coleman's background before he put him on the witness stand. But in his report,
Judge Chapman noted that McEachern ''knew or should have
known'' that Coleman
had a reputation for dishonesty, had fled bad debts, had been arrested for
theft, had walked off previous law enforcement jobs and was considered
untrustworthy by law enforcement officials in other counties. That information
should have been provided to defense lawyers, Chapman wrote, but it was not.
McEachern did not respond to a telephone request for an interview. His assistant
says he has been referring calls to Hobson, the special
During one trial in July 2000, Coleman testified that he had
arrested. In fact, he had been arrested in 1998 for allegedly
According to his own affidavit, McEachern was aware
of the arrest before any of the original Tulia defendants was indicted. During
one of the trials in 2000, McEachern said he participated in Coleman's
He also defended Coleman in court, noting in one of the
trials that Coleman had been named Texas' outstanding law enforcement officer of
the year in 2000. ''If you can't believe him, well, then who can you believe?''
McEachern was quoted as saying at the time.
In his deposition three
months ago, McEachern said he did not participate in the background
A recent hearing to reconsider four of the original Tulia
halted when two special prosecutors appointed to handle the
case agreed with defense lawyers that Coleman lied on the stand and that the
defendants should be released.
Accountability Initiative Law - www.jail4judges.org
JAIL is a unique
addition to our form of gov't. heretofore unrealized.
JAIL is powerful! JAIL
is dynamic! JAIL is America's ONLY hope!
JAIL is taking America like a
making inroads into Congress for federal accountability!
E-Groups sign on at
Get involved at JAIL_SALE_USAemail@example.com
offerings to J.A.I.L., P.O. Box 207, N. Hollywood, CA 91603
"Give me your
wealth, and I will give you America" - Ron Branson
"..it does not require a majority to prevail, but
rather an irate, tireless minority keen to set brush fires in people's minds.."
- Samuel Adams
"There are a thousand hacking at the branches of evil
to one who is
striking at the
-- Henry David Thoreau