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.