Friday, December 15, 2023

An examination of prosecutorial misconduct in Ohio criminal courts

Columbia Journalism Investigations and its partners examined hundreds of state appellate decisions to identify claims of prosecutorial misconduct in Ohio, reviewed hundreds of pages of police records and personnel files, and interviewed dozens of criminal justice experts, legal scholars, judges and defense attorneys from around the United States, along with prosecuting attorneys, and defendants whose cases were affected by the wrongdoing, reported NPR.

Among the findings:

  • Of the scores of criminal trials from 2018 to 2021 in which appeals courts found that prosecutors acted improperly, most were for failing to disclose evidence and making inappropriate comments in closing arguments — violations that could have affected the defendants' ability to get a fair trial. Nearly 80% of the errors were ruled not egregious enough to warrant a reversal, which experts say enables prosecutors to make repeated mistakes with near impunity.
  • None of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court, the body ultimately charged with doling out attorney discipline.
  • All of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges tasked with ensuring fair trials.

The findings are a first-ever attempt to pull back the curtain of anonymity shielding Ohio prosecutors from public scrutiny when appeals courts affirm claims of improper conduct. They also show a systemic failure to hold prosecutors accountable that experts say is not exclusive to Ohio.

Legal scholars say the number of known misconduct cases is a vast undercount. About 3% of criminal cases make it to trial, and a fraction of those are appealed. Defendants often lack resources to challenge convictions, or they face procedural barriers that prevent them from doing so.

In Ohio, there were roughly 4,700 criminal trials statewide between 2018 and 2021. Nearly 450 appeals — about 10% of those trials — included an allegation of prosecutorial misconduct during that four-year period, CJI and NPR's analysis shows.

Appeals involving prosecutorial misconduct are rare, but in Ohio about 1 in 4 claims ended in a ruling of improper conduct in that time — a ratio that suggests a systemic problem, experts said.

Former prosecutor Bennett Gershman, who now teaches at Pace University's School of Law in New York, called the pattern of prosecutors who repeatedly act improperly in cases in Ohio a "microcosm" of the criminal justice system in states across the country.

In Tennessee, the Shelby County prosecutor was rebuked at least twice by higher courts in several murder cases for withholding key evidence or improper opening remarks, records show. Two of the convictions were overturned, and a new trial was ordered in one case. Voters ousted her last year.

In St. Charles County, Missouri, the state appeals court admonished a prosecutor in two cases for his "brazen use of propensity evidence" and in a third case for withholding evidence from the defendant, court records show. The attorney retired this year.

And in Monroe County, N.Y., which includes Rochester, the courts reprimanded a prosecutor in three sex crime cases for misrepresenting evidence and deals with jailhouse snitches, and for trying to slip inadmissible evidence into the record by asking the defendant to read it, according to court records. She is now a judge in a nearby county.

"Once you start focusing on these prosecutors, you can learn a lot about the prosecutorial mentality and why prosecutors engage in unethical behavior and why they consistently get away with it," said Gershman, one of the nation's preeminent scholars on the topic. "You'll find other jurisdictions in America which are equally shocking."

He said the Ohio statistics "show a shocking disregard for ethical behavior."

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