Arizona prosecutors frequently find themselves under the magnifying glass for their behavior and tactics in court, and the results of this type of close examination tend to reveal several forms of error and misconduct during trial.

Although prosecutor faults are identified, they are very rarely corrected. In fact, many of the trials that include prosecutor misconduct remain unaffected and unchanged despite the recognition of errors during trial. In fact, prosecutors themselves do not usually face any serious consequences.

According to a report by the Arizona Republic reviewing every Arizona Supreme Court opinion on death sentences since 2002, prosecutor misconduct has been alleged in half of all capital cases ending in death sentences.

“Of 82 cases statewide, prosecutorial misconduct was alleged on appeal by defense attorneys in 42 and the court found improprieties or outright misconduct in 18 instances. But only two of those death sentences were reversed because of the improprieties, and only two prosecutors were disciplined,” The Arizona Republic reports.

The seriousness of these offenses ranged from excessive sarcasm to much more serious issues such as failing to disclose evidence that might have benefitted the defendant and introducing false testimony. Most of these offenses, regardless of their severity, were identified as “harmless error” by the court.

Harmless error is defined by the Federal Evidence Review as the recognition of mistakes made in court that are not severe enough to warrant retrial.

Several examples of this can be seen in Arizona courts, but their consideration is dependent upon judges at the appellate level to decide what information may have influenced a lay person’s opinion of guilt or innocence.

The first American prosecutor to be disbarred for misconduct during a capital case occurred in Arizona in 2004 when Pima County prosecutor Ken Peasley was caught presenting testimony he knew to be false. It took seven years to disbar Peasley, the Arizona Republic said.

In 2012, Andrew Thomas and Lisa Aubuchon, a former Maricopa County attorney and one of his deputies at the time, were disbarred for “filing criminal charges and a civil racketeering lawsuit against Superior Court judges and Maricopa County officials to further Thomas’ political goals,” the Arizona Republic said. Neither was charged criminally, and more than $5 million was spent by the county in legal fees to settle lawsuits from judges and officials.

Most recently, the Pinal County Chief Deputy Richard Wintory has been the focus of an investigation by the State Bar of Arizona for inappropriate contact with a member of a murder suspect’s defense team. He will most likely face minor sanctions from the State Bar, the Arizona Republic said.

In response to these prosecutorial issues, Maricopa County Attorney Bill Montgomery said he has increased prosecutor training and maintains an ethical committee to keep track of the actions of prosecutors, judges and defense attorneys. He objects to the addition of a newly proposed ethical rule requiring prosecutors to report if they learn of new evidence after a conviction that may have been exculpatory.

However, Montgomery has also said that he is unaware of a lot of prosecutor misconduct and often times does not believe it is his duty to keep them accountable.

“The attorneys are trying the case, I’m not going to step in,” he said. “They’re on their own. And if they need to be put in their place, that’s the job of the judge. It’s the job of the defense attorney to object.”

There is evidence that prosecutors are aware of the lack of discipline for their errors in court.

“In the 30 years I’ve been a prosecutor, I’ve had many people file complaints and lawsuits against me, but I’ve never been disciplined,” Wintory said regarding his own misconduct throughout his career.

While mistakes and misconduct occur, having an experienced and knowledgeable attorney can help even the playing field.

Court decisions from around the country are questioning the standard testing for alcohol levels in those suspected of drunk driving.

For years, a series of tests have been conducted by law enforcement to uncover elements common in people who have been suspected of drinking and driving. Officer observations are followed by roadside testing. Chemical breath tests and/or blood tests are collected as further evidence.

The accuracy of this process, and breathalyzer tests in particular, is being scrutinized through a landmark case, Daubert vs. Merrell Dow Pharmaceuticals, the 1993 case resulting in the formation of the Daubert Standard. The Daubert Standard requires that the judge overseeing each case act as a gatekeeper, suppressing evidence that lacks scientific quality.

According to the Cornell University Law School Legal Information Institute, the Daubert Standard requires that a trial judge “make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue.”

The Daubert Standard uses the following factors to determine the validity of methodology:

• whether the theory or technique in question can be and has been tested
• whether it has been subjected to peer review and publication
• its known or potential error rate
• the existence and maintenance of standards controlling its operation
• whether it has attracted widespread acceptance within a relevant scientific community

Court Decisions Influenced by the Daubert Standard

Since 1993, a long history of defense has been established through the use of the Daubert Standard. Recently, the Daubert Standard has helped mount defense against the use of a breathalyzer test that garners questionable results.

In August, an Ohio judge dismissed the results of a 2012 breath test because the Intoxilyzer 8000, a breathalyzer, was faulty according to the World News Report.

Also in 2013, the validity of results from the Intoxilyzer 8000 were again questioned in the State of Ohio vs. Chelsea Lancaster.

Despite a rigorous defense of the machine by the head engineer for the manufacturer of the Intoxilyzer 8000, a respected toxicologist and the head of the Ohio alcohol testing program, overall doubt regarding the credibility of the Intoxilyzer 8000 has been established through numerous rulings, the Ohio Association of Criminal Defense Lawyers (OACDL) reports.

Judge Teresa Liston was assigned by Marietta Municipal Court Judge Janet Dyar Welch to hear several similar cases and ruled that results by the Intoxilyzer 8000 are not scientifically reliable.

Among the problems with the machine were radio frequency interference, allowing result manipulation by officers, and evidence that the Intoxilyzer 8000 read not only alcohol levels but other substances found in the mouth, esophageal fluids and blood.

Due to a lack of scientific accuracy, results from the Intoxilyzer 8000 were dismissed.

These results have significant bearing on Arizona cases. The Intoxilyzer 8000 is the only breathalyzer test admissible in Arizona courts, according to Attorney at Law Magazine.

Chemical tests have been challenged under Daubert in Arizona as recently as August, when attorneys won a hearing involving the blood results of defendants charged with felony DUIs in Maricopa Superior Court. The Scottsdale crime lab was criticized for using faulty equipment and incorrect methods, causing the court to dismiss any of the lab’s reported results for the case.

As Arizona DUI lawyers, Corso Law Group will continue to monitor court decisions questioning the standard testing for alcohol levels in those suspected of drunk driving and to challenge methodology used by the state to obtain convictions.

Ryan Ferguson, a 29-year-old Missouri man, was released from prison in November after the Missouri attorney general chose not to retry him for the slaying of Columbia Daily Tribune sports editor Kent Heitholt in 2001.

Ferguson, only 17 at the time of the murder, was given a 40-year sentence after being implicated by friend, Chuck Erickson. He was released after Erickson admitted he and an eyewitness lied in court.

Ferguson’s conviction was overturned after an appeals court ruled his trial was unfair due to the prosecution withholding evidence, according to CNN.

After spending nearly a decade behind bars, Ferguson was greeted by his lawyer who had written: “It’s over” on a piece of paper and held it up against the protective glass. He then traveled to freedom in his father’s car where friends and family cheered Ferguson’s arrival at a news conference where he thanked his friends, family and attorneys reported Fox News.

As reported by the StarTribune, Ferguson’s case sparked a wildfire social media campaign with the “Free Ryan Ferguson” Facebook page gaining over 8,000 likes in one day bringing the total to over 80,000 likes.

Maricopa County Superior Court Judge Warren Granville denied former Phoenix police officer Richard Chrisman’s request to have his aggravated assault charge thrown out on Nov. 13.

In 2010, Chrisman was charged with murder and animal cruelty after he responded to a domestic violence call and it ended with the death of 29-year-old Daniel Rodriguez, in a south Phoenix trailer according to the Huffington Post.

The Arizona Republic reported in November that Chrisman and his defense attorney Craig Mehrens once again sat in Granville’s courtroom in an effort to get the aggravated assault charge thrown out due to misconduct committed by the prosecutor, Deputy County Attorney Juan Martinez, throughout the trial.

Chrisman was found guilty of aggravated assault in September by a jury after putting a gun to head of Rodriguez while answering a domestic violence call in October 2010 with his partner Phoenix Police Officer Sergio Virgillo.

The critical testimony made by Virgillo opposed Chrisman’s statements, stating that Rodriguez was unarmed and backing away with his hands up when Chrisman fired two shots.

The trial ended in a hung jury when it came to convicting Chrisman of second-degree murder and animal cruelty and Chrisman was granted a new trial scheduled for early next year.

Mehrens attempted to get the aggravated assault charges dropped against Chrisman, which he will be sentenced for on Dec. 20, stating that Martinez has been misleading throughout the trial according to The Arizona Republic.

After only 45 minutes, Granville denied Chrisman’s request to have his aggravated assault verdict tossed out and scheduled a new trial for Jan. 27, 2014 for the remaining undecided charges.