Last updated on: 9/18/2008 | Author:

Is Prosecutorial Misconduct a Widespread Problem in Capital Cases?

General Reference (not clearly pro or con)

Steve Weinberg, MA, author and freelance magazine writer, wrote in his June 26, 2003 article, “Breaking the Rules: Who Suffers When a Prosecutor Is Cited for Misconduct?,” published on the Center for Public Integrity website:

“Prosecutorial misconduct falls into several categories, including:

  • Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);
  • Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);
  • Failing to disclose exculpatory evidence; Threatening, badgering or tampering with witnesses;
  • Using false or misleading evidence;
  • Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);
  • Improper behavior during grand jury proceedings.”
June 26, 2003 - Steve Weinberg, MA

PRO (yes)


James S. Liebman, PhD, Professor of Law at Columbia University, et al., wrote in their June 2000 article “A Broken System: Error Rates in Capital Cases, 1973-1995,” published on the website of the Columbia Law School:

“Between 1973 and 1995, approximately 5,760 death sentences were imposed in the U.S. Only 313 (5.4%; one in 19) of those resulted in an execution during the period…

Of the 5,760 death sentences imposed in the study period, 4,578 (79%) were finally reviewed on ‘direct appeal’ by a state high court.Of those, 1,885 (41%; over two out of five) were thrown out because of ‘serious error,’ i.e., error that the reviewing court concludes has seriously undermined the reliability of the outcome or otherwise ‘harmed’ the defendant.

‘Serious error’ is error that substantially undermines the reliability of the guilt finding or death sentence imposed at trial. Each instance of that error warrants public concern. The most common errors are (1) egregiously incompetent defense lawyering…and (2) prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty…

High error rates pervade American capital-sentencing jurisdictions, and are geographically dispersed.”

June 2000 - James S. Liebman, PhD


The American Civil Liberties Union (ACLU) Capital Punishment Project wrote in a fact sheet titled “Police and Prosecutorial Misconduct Are Common in Death Cases,” published on www. (accessed Aug. 22, 2008):

“Keeping blacks off death penalty juries is a common form of official misconduct. When the U.S. Court of Appeals for the Eleventh Circuit reversed the death sentence of Jimmy Lee Horton in September of 1991, it censured the District Attorney of the case. In a succession of death penalty cases he had used his preemptory strikes to keep blacks off the juries of black defendants. He even instructed the county clerk how to under-represent blacks and women in the jury pool and not get caught…

Some people are sentenced to death on the basis of untrustworthy testimony from jailhouse snitches. To obtain convictions, prosecutors sometimes rely on the testimony of jailhouse informants who claim to have heard the defendant confess to the crime while incarcerated… prosecutors are required to inform the defense when deals with informants are made. Sometimes they do not…

Prosecutorial misconduct was part of what led Governor Ryan to impose a moratorium on executions in Illinois. Chicago Tribune reporters conducted research on prosecutorial misconduct in Illinois. They identified 381 murder cases reversed on prosecutorial misconduct grounds, such as withholding exculpatory evidence, improper argument, and suborning of perjury, among others.”

Aug. 22, 2008 - American Civil Liberties Union (ACLU)


Michael Kroll, Founder and former Executive Director of the Death Penalty Information Center, wrote in his Mar. 1992 article, “Killing Justice: Government Misconduct and the Death Penalty,” published on the Death Penalty Information Center website:

“Twelve years ago, when Jimmy Carter was in the White House, Gary Nelson was convicted and sentenced to die for the 1978 rape and murder of a 6-year-old child in Chatham County, Georgia… On November 6, 1991, after more than eleven years protesting his innocence… Nelson was released. A free man.

It had taken his appellate lawyers, working without pay, that many years to prove that the government’s capital case against their client rested on a foundation of official lies, the knowing use of false testimony, and the willful suppression of evidence in the state’s possession…

[P]rosecutorial misconduct in capital cases… is widespread, is not confined to a single region of the country, and often leads to wrongful convictions and even to the execution of the innocent.”

Mar. 1992 - Michael A. Kroll


Robert Sherrill, investigative journalist and author, wrote in his Dec. 21, 2000 article, “Death Trip: The American Way of Execution,” published in The Nation, that:

“Misconduct abounds. Prosecutors who bully, lie and misuse or hide evidence are as common as baseball players who chew gum. In all the most active capital-punishment states, prosecutors often build their cases by hiding evidence and using jailhouse snitches eager to lie in return for lower sentences for themselves. They also rely on junk science, such as the widely discredited use of hair comparisons as forensic evidence. And then there are the psychiatrists. In Texas the death penalty cannot be imposed unless the jury unanimously agrees that if turned loose the defendant would likely kill again. Prosecutors know which psychiatrists – ‘killer shrinks,’ critics call them–are most useful…

[T]he Texas Department of Criminal Justice’s chief psychologist helped send nine men to death row by arguing that they were a future menace to society because they were Hispanic or black.”

Dec. 21, 2000 - Robert Sherrill

CON (no)


Robert P. McCulloch, JD, Prosecuting Attorney for St. Louis County, Missouri, wrote in his 2003, “Message from the President,” published on

“Recently a national magazine published a terrific article about a prosecutor in a death penalty state [“Guarding Death’s Door,” Time Magazine, Jul. 8, 2003]. The article rightfully praises the prosecutor for his approach to the death penalty and the process he uses to determine whether he should seek death in a particular case. The author went into great detail about how the decision is made…

The purpose of this process, according to the prosecutor, is to ensure that only the guilty are subjected to a potential death sentence. In fact, if there is any real doubt about the guilt, then death is off the table.

Sound like a great system? It is. So what’s the concern? My concern is not with the system but with the article. The author believes that this is a unique procedure when in reality many, if not most, prosecutors review death and many other serious cases in a very similar manner…

Our responsibility is to protect the public from those who commit crimes and to protect those who do not commit crimes from unwarranted prosecution. Because of our critical role as the gatekeepers to the criminal justice system, we are and should be subjected to a closer scrutiny than others. The courts, media, bar associations and, most importantly, the public we serve all review our conduct on a daily basis. Our obligation to the public is to see that justice is served in every case. We know and understand that obligation. We also know that only in rare instances do prosecutors stray from that responsibility.”

2003 - Robert P. McCulloch, JD


Joshua Marquis, JD, District Attorney for Clatsop County Oregon, wrote in his Mar. 31, 2005 article “The Myth of Innocence” published in the Journal of Criminal Law and Criminology, that:

“Popular culture… has created an entire alternate universe that posits a legal system that regularly hurls doe-eyed innocents onto death row through the malevolent machinations of corrupt cops and district attorneys who either earn bonuses for the innocent people they convict or are so intent on advancing their careers that they disregard the truth and conceal evidence that might clear the defendant. These fantastic constructions are prominent in television programs like The Practice (mercifully axed), in movies like True Believer and True Crime as well as in popular fiction.”

Mar. 31, 2005 - Joshua Marquis, JD


The US Department of Justice (UDOJ) Bureau of Justice Statistics wrote in its Sep. 1995 paper “Federal Habeas Corpus Review: Challenging State Court Criminal Convictions” published on the USDOJ Bureau of Justice Statistics website:

“Common among policy debates over habeas corpuslitigation is the question of whether to broaden or limit the scope of Federal habeas corpus review [federal case review for prisoners that have exhausted all state court appeals] for the specific purpose of acknowledging the unique and special circumstances of death-penalty cases. The effort to limit habeas corpus litigation in death-penalty cases attempts to put an end to what is now almost a ceaseless process. The effort to preserve all avenues of redress in death-penalty cases recognizes the extreme nature of the punishment…

Policymakers, judges, and lawyers rightly are concerned about the handling of death-penalty petitions…

The thoroughness of the Federal review process affirms the correctness of the State actions being challenged. Police, prosecutors, defense counsel, and State courts appear to be fulfilling their criminal detection, prosecutorial, and adjudicatory functions without abridging individual Federal constitutional rights.”

Sep. 1995 - US Bureau of Justice Statistics (USBJS)