When Innocence Gets Short Shrift as the Public Clamors for Tougher Treatment of Criminals, the Federal Crime Bill Attaches the Death Penalty to 52 Offenses, and Avenues of Appeal Are Being Choked off. Yet Illegal Conduct by Prosecutors in Numerous Capital Cases Raises Alarms about Protecting Rights of the Accused. Second in a Series of Articles. Series: UNJUST PUNISHMENT

Article excerpt

IN 1982, Ricardo Aldape Guerra was sentenced to die for killing a Houston police officer.

Eleven years later at an appeals hearing in a federal courtroom, the defendant's new lawyer pried open the state's case to reveal a disturbing layer of improper police procedures, evidence withheld, witness coercion, and knowing use of false testimony.

Increasingly dismayed at what he was hearing, Judge Kenneth Hoyt began to direct provocative questions at Richard Bax, one of the prosecutors in the case.

Riled, Mr. Bax lashed back at the federal judge: "I resent anyone telling me that I had somehow conspired to get an innocent person the death penalty."

Indeed, such an act would be "morally reprehensible ... one of the worst things you can do," says Laurie Levenson, a former federal prosecutor who teaches criminal law and ethics at Loyola Law School in Los Angeles. Prosecutors swear to uphold the United States Constitution, which directs them to seek the truth, not stack the deck.

Nonetheless, examples abound of various types of prosecutorial misconduct in capital cases. Though illegal, such misconduct is rarely punished. It may not be discovered for years, if ever. Its persistence is especially dangerous, defense attorneys say, at a time when more categories of crime are being deemed punishable by death and more avenues of appeal are being choked.

Hoyt's conclusions in Mr. Aldape Guerra's case are shocking but not unusual: "The police officers and prosecutors had a duty to accurately Overzealous Prosecutors Taint Justice

record the statements of the witnesses, to fairly investigate the case, and to disclose all exculpatory evidence. Moreover, they had a duty to not prosecute an innocent man. They failed in these duties."

"The police officers' and the prosecutors' actions described in these findings were intentional, were done in bad faith, and are outrageous," the judge continued. "These men and women, sworn to uphold the law, abandoned their charge... Their misconduct was designed and calculated to obtain a conviction and another 'notch in their guns'...." Last November, Hoyt ordered the state to free Aldape Guerra or grant him a new trial.

"Baloney," Mr. Bax remarked to a Houston newspaper. Now in private practice, Bax did not answer the Monitor's invitation to respond to Hoyt's criticisms. Meanwhile, Aldape Guerra languishes in prison while legal maneuvering in his case creeps onward.

Prevalence of misconduct

The notion of prosecutors intentionally breaking the law to win a capital case might alarm minorities and the poor in particular, since they are the usual defendants in capital cases.

Sympathy for the unjustly accused often fizzles if the defendant has a criminal record, was peripherally involved in the crime, or runs with the wrong crowd. Florida defense attorney Michael Mello says the public's attitude in such cases is "well, maybe he didn't commit this crime, but he's guilty of something."

Some death-row inmates later proved innocent had none of these traits. They were all but plucked from the street at random.

"The next person up could be anybody's son or anybody's brother," says Nick Trenticosta, executive director of the Loyola Post-Conviction Defender Organization in New Orleans. Still, 70 percent of Americans favor capital punishment.

Since not all misconduct is discovered, nor are all claims legitimate, statistics are imprecise, says Richard Dieter, executive director of the Death Penalty Information Center in Washington. While some argue that capital punishment is immoral, the DPIC opposes it for practical reasons such as its high cost, its low deterrent effect, and the difficulty of administering the death penalty in a fair and consistent way.

This much is known: Each year the United States witnesses an average of 24,000 murders, Mr. Dieter says. …