NECN INVESTIGATES: Prosecutorial Misconduct – When Prosecutors Break the Rules

Dozens of people in Massachusetts have had their criminal convictions reversed in the last 20 years in part or entirely due to misconduct by prosecutors

Pointing to photos of fellow iron workers on his computer, Ulysses Charles said, "That's what gives me joy, that's what gives me pleasure." The Boston man says work and his grandchildren are his priorities now, but his priority used to be freedom. Charles spent 17 years behind bars for a string of rapes and robberies he did not commit.

He was set free in 2001. A judge ruled prosecutors failed to disclose evidence during his trial that could have affected the jury's decision.

Charles laughed bitterly, "You surprised or something? This is something like novel, its unique. But it goes on every day. It goes on every day, man."

In a Joint Investigation with the New England Center for Investigative Reporting, necn found dozens of men and women in Massachusetts have had their criminal convictions reversed in the last 20 years - in part or entirely - because of what judges in the state's Supreme Judicial Court and Appeals court described as prosecutorial misconduct.

"I would think that that's probably the tip of the iceberg," said Daniel Medwed. He is a professor at Northeastern University's School of Law and says misconduct ranges from prosecutors withholding evidence that could help the defense to badgering or threatening witnesses to improper remarks in closing arguments.

"If prosecutors aren't playing fairly, they can take advantage of the public's faith in them and pervert the whole idea of the presumption of innocence," he said.

NECIR reviewed more than 1,000 appeals where defendants alleged prosecutorial misconduct in their original cases:

  • In about 12 percent of the cases, judges found cause to overturn the conviction;
  • in 11 of the cases reviewed, the defendant was fully exonerated;
  • in another 25 percent of the cases, judges criticized prosecutor's bad behavior, but found the lapses were not enough to affect the jury's decision;
  • and 11 defendants were fully exonerated - proven innocent after spending years behind bars.

"I don't think its a major issue," Berkshire County District Attorney David Capeless said. "It happens. It's obviously something of great concern to myself and my colleagues as district attorneys. Our job is to ensure justice and make sure that the right thing is done."

Capeless, who heads the Massachusetts District Attorneys Association, said he and his colleagues train their employees on an ongoing basis to guard against misconduct, but insists that when it does happen, it's often because of a mistake and not malice.

"There are cases in which you do step over the line in the sense that you say the wrong thing, or say something the wrong way. That does happen," he said. "And a lot of times a prosecutor can sit down and know, and say, 'Did I say that?'"

"I think any misconduct by a government official that has that much power - the power to take away somebody's freedom - I think it has to be punished," defense attorney Patty DeJuneas said.

In fact, necn and NECIR could only find two public reprimands in the last 40 years and they came with no fine or punishment. Prosecutors with reversals have gone on to become DAs or judges - and critics worry convictions are the way to get ahead.

"Even though every single DA's office in this Commonwealth would deny it, my belief is that every single office values this type of measurement," Medwed said.

Added DeJuneas, "I know of prosecutors who have been found to have engaged in misconduct who have been promoted and who are in charge of training younger prosecutors. If anything, they're making it worse by giving incentives and by rewarding prosecutors who are winning convictions through misconduct."

Capeless disagreed. "Doing justice, doing right. That's the important thing," he said. "Gaining convictions is not what we're about."

Charles was fully exonerated after DNA evidence proved prosecutors had the wrong man. He won $4 million in civil suits and has put prison behind him. But he feels for men like James Rodwell.

Speaking to us from the Massachusetts Correctional Institution at Concord, Rodwell said, "The judge has my life in his hands right now."

The Burlington man is waiting for a judge to rule on his seventh appeal. He's been behind bars for nearly 35 years, convicted of killing the son of a police captain. His lawyer said they now have proof that prosecutors failed to tell the jury their key witness was given favors for his testimony. It's an allegation Middlesex County prosecutors deny - but one Rodwell's father hopes will set him free.

"How do you make up for 35 years of imprisonment?" asked Tom Rodwell, as he sat in a wheelchair outside one of the dozens of courtroom hearings he's gone to to support his son. "He doesn't look his age, but he's not that young." The elderly man then starts to cry and cannot regain his composure.

When judges overturn convictions or indictments due to misconduct, they almost always leave out the prosecutor's name in their decison. In the 120 reversals necn and NECIR reviewed, prosecutors were only named seven times. That makes it difficult, defense attorneys say, to track prosecutors with a repeat history of misconduct.

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