D.A.s Running Wild

D.A.s Running Wild

Christopher Hill and William Webster

June 27, 2007

Christopher Hill and William Webster work on the ACLU’s Capital Punishment Project.

There’s a childhood saying that “cheaters never win.” And while prosecutors who break the rules may not always see victory, they rarely lose everything. Unlike Duke Lacrosse prosecutor Mike Nifong, they usually do not lose their livelihood, professional standing or reputation. The defendants at their mercy, on the other hand, could end up paying the highest price—their lives—and sometimes do.

While the Duke players faced a real risk of going to prison, there are other citizens of North Carolina and elsewhere across the country who have faced even greater risks because of prosecutorial misconduct, who have been sent to death row and even been executed. While former Durham District Attorney Mike Nifong is no longer free to deny justice to other defendants, the prosecutors in many of those death penalty cases are still allowed to practice law. State ethics boards have, in effect, allowed death before disbarment.

The recent retrial and acquittal of Alan Gell in North Carolina is a poignant example. Gell spent a total of nine years in prison-including four on death row-after being wrongfully convicted of the murder of Allen Lee Jenkins. The state prosecutors did not provide the defense with witness statements that indicated Gell was in jail when the victim was murdered. They also possessed a recording of his co-defendants, who received deals for testifying against him, recounting their creation of a story to tell the police, but did not turn this recording over to the defense. While former D.A. Nifong was faulted for relying on a story he knew to be false and was disbarred for, among other things, failing to disclose to the defense obvious proof of innocence, the lawyers prosecuting Alan Gell are still practicing law.

In another North Carolina murder case, Charles Munsey was convicted based on testimony of a jailhouse informant who claimed Munsey confessed to him. The only problem was that they were probably not in the same prison. When the defense tried to get the informant’s prison record from the prosecutors, they told the judge the records had been turned over to counsel when, in fact, that had never happened. Only a confession by the real murderer saved Charles Munsey. One of the prosecutors in Munsey’s case hanged himself. The other still has his law license. Charles Munsey died of lung cancer before he could receive a new trial.

These situations are not, unfortunately, aberrations. Similar situations occur more often than they should, and not only in North Carolina. The withholding of evidence has sentenced people to death in Texas, Louisiana, Idaho and elsewhere. Not only have countless innocent citizens been charged and convicted of crimes, but some, like Carlos De Luna, were even executed as a result of prosecutorial misconduct. In De Luna’s case, the investigation of a homicide by Texas police and the ensuing prosecution were replete with misrepresentations of the evidence. The lead prosecutor called an alternative suspect a “phantom.” In fact, the suspect was known to the co-prosecutor at De Luna’s trial. De Luna’s prosecutors have admitted that the alternative suspect was, indeed, a member of the human race, and no phantom.

In Pennsylvania, Dennis Counterman was sentenced to die for an arson fire which killed his three sons. The prosecutor’s office redacted statements by Counterman’s wife that he was asleep at the time of the fire. Statements by neighbors that Counterman’s oldest son had a history of setting fires were also withheld from the defense. The prosecutor in that case simply moved on to the Pennsylvania Attorney General’s Office.

The job of the prosecutor is not simply to win a case. Citizens are only protected from crime when justice is administered properly. That requires a prosecutor to insist that all defendants receive fair trials.

In asking juries to return death sentences, prosecutors often say that the victims cry out for justice from the grave. Well, the innocent victims of a prosecutor’s misconduct who languish for years on death row also cry out, and their screams often go unheard.

Because of Mike Nifong’s actions, the Duke student-athletes must live with the stigma of a false prosecution. In capital crimes, the risk of prosecutorial misconduct goes beyond ruined reputations; it is a matter of life or death.