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
"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. …