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October 28, 2013

Host: Ted Simons

Prosecutorial Misconduct

  • The Arizona Republic has looked at past death penalty cases in Arizona since 2002, and found that prosecutorial misconduct was alleged in 42 of the 82 cases. Arizona Republic reporter Michael Kiefer, who has been working on the series, will discuss the issue.
  • Michael Kiefer - Reporter, Arizona Republic
Category: Law   |   Keywords: death, penalty, arizona, cases,

View Transcript
Ted Simons: A special report by the Arizona Republic is examining prosecutorial misconduct in Arizona death penalty and other cases dating back for ten to 15 years. Michael Kiefer of the Arizona Republic is leading this particular project. He joins us right now. First, great reporting. Great job so far. We're just a couple stories in, you have more stories coming out so I don't want you to scoop yourself, but talk about what you're doing. Prosecutorial misconduct. How bad is it in Arizona?

Michael Kiefer: It's not rampant. It tends to be as in most other jurisdictions that there are a few players who repeatedly push the envelope. The problem is you know, it can be in very high-profile cases and it's very difficult to reign in. Nobody wants to do it.

Ted Simons: Alleged in half of all capital cases ending in death sentences and half of those we find out the Supreme Court saying, yes, there was a problem here.

Michael Kiefer: Now, in terms of what constitutes prosecutorial misconduct, that's a problematic thing. There's no black-letter definitions of the word. It's a constitutional issue. It's something that infringes on someone's constitutional right to a fair trial. These instances, these allegations will come in the appeals of these death penalties under a heading of prosecutorial misconduct, but it can range from things that are inadvertent, something so -- something like rolling eyes, vouching for evidence saying you know this witness is telling the truth. All the way up to encouraging witnesses to perjure themselves.

Ted Simons: You wrote excessive sarcasm could be involved, from that to introducing false testimony and everything in between. Where is the line drawn between misconduct and error?

Michael Kiefer: There are recommendations by the American Bar Association to distinguish among them, but the line is drawn by the judge. The allegation is made whether you're talking about a case in trial or you're talking about something during an appeal. It has to be argued. One side will say, look, we think this crossed the line. The other side will defend itself. Then it's up to the judge to make a decision. What's the problem with that? Especially if you're talking about murder cases or serious criminal actions, who wants to put that person out on the street? What are the options? The judge can sanction an attorney, can refer the attorney to the bar or throw out the case.

Ted Simons: How often are attorneys sanctioned or referred to the bar?

Michael Kiefer: Prosecutors very, very rarely. I found in the 82 cases I looked at the death penalty cases going back to 2002 there were two attorneys sanctioned. Two cases thrown out. They weren't necessarily the same cases. They are very hesitant to do that. Very few attorneys or prosecutors are referred to the bar. Defense attorneys don't want to tangle with them. Prosecutors, again, most prosecutors are very honorable, but they have to be held to a higher standard. Why? They make the charge. They can offer -- they decide whether or not to impose the death penalty. They can offer the plea agreement. When you consider that most -- we have mandatory sentencing in Arizona. In essence they are pre-determining what the punishment is going to be. Now, consider also that there are perhaps 40,000 felonies charged in Maricopa County alone per year. Only 2% go to trial. Most result in guilty verdicts. The other 98% are probably settled through plea agreements. So basically you're talking about mostly guilty verdicts. Think about those things.

Ted Simons: The dynamics are touchy here. That's why this is an important story. Why did you decide to go with this story? Talk about your background in the courts. Did you see stuff? Are you hearing stuff out there? What sent you down this trail?

Michael Kiefer: I have been covering the courts here for a little more than ten years. So many of the cases that are detailed in this case are cases I have covered. I have been there firsthand. In fact it was interesting, we were going through with the lawyers and the editors, they asked how do you know they said that? Well, I was there. I have been gathering these sort of anecdotal ideas and then I was asked if I wanted to put a proposal together for the Guggenheim Foundation for a fellowship. I thought maybe I want to look at this. I have wanted to look at this. The paper gave me the time to go back and look at it.

Ted Simons: And again, you're looking in general at prosecutorial misconduct. We went over the definition and you referred to this. Bottom line is is it such that the defendant does not receive a fair trial?

Michael Kiefer: Exactly.

Ted Simons: That is what you were looking at. Is that, A, a problem right now in Arizona, and B, where is the problem worse? Maricopa, Pinal, smaller coutnies? What’s going on there?

Michael Kiefer: It changes with the culture. There was a period in which Pinal County was problematic there were three attorneys there, one a guy named Ken Peasley got disbarred. He was an enormously popular, powerful prosecutor. Did a lot of death penalties. He was considered to be un-- what is the word? No one questioned him. It turned out that he got caught in this triple homicide encouraging a detective to perjure himself. Not just in the first trial but in mistrials. It caught up with him. At that same time there were two other prosecutors who had a lot of difficulties. One was suspended. The other passed away. It's a cultural kind of thing. Now, we are looking right now at some serious retrials. Debra Milke, Jonathan Duty, both cases that have come back 20 years later, 25 years later because of actions taken by the state. Questionable confessions. Forced confessions. We pay for this. What is the problem? You can have as in the first section I talked about Ray Crone. Ray Crone was sent to death row for a crime he did not commit. His first conviction was thrown out because of prosecutorial actions. The second one he was ultimately exonerated. Debra Milke, the risk here is that an innocent person can go to prison. And also that a guilty person can be set free.

Ted Simons: With that being said, what kind of response are you getting, vocal or otherwise, on the background style here, from prosecutors, from judges, from defense attorneys? Are you getting this guy is way out of line, what's he talking about, or hurrahs?

Michael Kiefer: There's been a lot of reaction, mostly favorable so far. Defense attorneys of course have thought this to be a problem. They feel -- they are hesitant to say anything about it because they have to face the same prosecutors over and over. I had a few judges tell me that they are happy to see something being done. Let's see if they will actually start calling people on it. A few prosecutors actually have talked to me. Some have been surprised by some of the things that people have said in the story.

Ted Simons: Short time here left, but what kind of oversight do County attorneys have over their departments? Are these folks just running under the radar here?

Michael Kiefer: You have people who have been working -- County attorneys tend to be elected officials. I'll get in trouble for saying this, but they have not -- they are not homicide, typically homicide prosecutors. They’re managers, they’re politicians. I think they delegate it to the supervisors they have. So they don't meddle in the cases.

Ted Simons: Tomorrow you'll talk about Juan Martinez in Maricopa County. That should be interesting. Great work. Good to have you. Thanks for joining us.