Fatal Flaws?

Article excerpt

There's only one thing wrong with the Chicago Tribune's prize-winning investigative series on so-called prosecutor misconduct, described so glowingly by Mark Fitzgerald ("Better Read Than Dead," E&P, April 24, p. 27).

It was inaccurate, misleading, and based on fatally flawed research.

I write as president of the National District Attorneys Association (NDAA), the nation's largest and primary organization of prosecuting attorneys, and thus on behalf of America's state and local prosecutors. As public officials and the chief law-enforcement officers of our respective communities, we are accustomed to second-guessing and criticism. And we sometimes make mistakes.

The Tribune series cites 384 homicide cases going back 35 years to buttress the argument that innocent men and women are routinely being sent to prison in a pattern of injustice rather than justice. While we are not suggesting that prosecutors are without fault, it should be noted that these cases represent a very small percentage of the thousands of homicide cases that proceeded through the criminal-justice system over the 35-year period and that were upheld by appellate courts.

The series implies that all 384 cases provide evidence of prosecutorial misconduct and that in these cases "innocent" men and women were imprisoned. Not so.

The NDAA conducted its own research by contacting the prosecutors' offices involved. We were able to develop information concerning 221 of 384 cited cases. Our results diverge greatly from those of the series.

First, prosecutor misconduct was identified in only 8.6% of the 221 cases; in another 24% of the cases, possible misconduct has been identified.

Of the 221 cases for which we could develop additional information, we found the following occurred after the reported reversal by an appellate court:

In 1% of the cases, there actually have been no reversals and the accused are serving the original sentences.

In 15.4% of the cases, the charges were dismissed and there were no subsequent trials.

On retrial, 10.4% of the cases resulted in acquittals.

On retrial, 29.4% of the allegedly "exonerated" individuals were convicted of lesser offenses, frequently by guilty pleas.

On retrial, 25.8% of the accused were reconvicted of the same offenses.

In the remaining 18.1%, there were a variety of situations that include pending retrials; defendants who died before retrial; and cases in which the defendant was already serving another sentence and no further trial was deemed necessary in the interests of justice. …