For the stories to go along with this project, click here to see the Harmful Error page, or here to read the Methodology behind the data.

While it is not unusual for an amicus curiae brief to be filed in a U.S. Supreme Court case, one such brief, filed on behalf of a Tennessee death row inmate, is unique both for its content and for the men who filed it. Six former Tennessee prosecutors argued, not on behalf of their state or the prosecutor, John Zimmermann, who won the conviction and death sentence against Abu-Ali Abdur'Rahman, but for the defendant. The six made the pattern of behavior of Zimmermann, a prosecutor in Davidson County (Nashville), Tenn., the central issue of their brief.

The U.S. Supreme Court listened to oral arguments in the Abdur'Rahman case in November 2002. Before reaching the highest court, the murder case wound its way through Tennessee's courts during the 1980s, 1990s and into the new century. The defendant in what is arguably Zimmermann's highest-profile case ever was born James Lee Jones. He found himself on death row after being convicted by a jury of murdering a man and wounding his female companion during an armed robbery. The Tennessee Supreme Court upheld the conviction in 1990, despite finding that Zimmermann's conduct in the case had crossed the line. In 1998, a U.S. District Court judge questioned Zimmermann's conduct in the same case, but did not give the defendant his desired result.

The American justice system is designed to err on the side of allowing the guilty to go free rather than incarcerate the innocent. But when an innocent defendant enters the criminal justice system, grievous mistakes can occur, even when prosecutors play by the rules. In some cases the prosecutor simply could not have foreseen the grievous mistake.

Gary Delsohn, a Sacramento Bee reporter, reached that conclusion after intensive research into the wrongful conviction of David Jonathan Quindt by trial prosecutor Mark Curry. Delsohn obtained special access to the Sacramento district attorney's office while researching a book, The Prosecutors: A Year in the Life of a District Attorney's Office, scheduled for publication by Dutton in August 2003. Delsohn's access gave him unique insight into the Quindt case, as well as a close look at the inner workings of a prosecutor's office.

Delsohn published an account of the Quindt case during 2002 in the quarterly magazine of the Alicia Patterson Foundation, an organization that gives financial support to journalists working on major projects. In an interview with the Center for Public Integrity, Curry said he has no quarrel with Delsohn's findings.

The crime leading to Quindt's murder conviction occurred Oct. 6, 1998, at a middle-class home in suburban Sacramento. The family living there grew high-quality marijuana, which several people knew about. Three armed men burst into the house at about 2:30 a.m., demanding the marijuana from the first occupants they saw—a 15-year-old girl who lived there and an 18-year-old male friend of her older brother. That male friend, Riley Haeling, a high school graduate working with disabled children, ended up dead, his body riddled with five bullets.

On January 2, 1983, in the early morning hours, James A. Buckley died at a service station in St. Louis County. The 19-year-old white male attendant had been shot seven times, with robbery as the apparent motive.

When 24-year-old Ellen Reasonover heard about the murder on the television news later that day, she mentioned to her mother that she had stopped at the service station after midnight to seek change for the laundromat. As she approached the cashier's cage, Reasonover recalled, she saw a black male inside, walking to the rear of the building. She assumed he was the attendant, but he didn't respond to her knocking. Reasonover glimpsed two other black males in the shadows of the service station lot, but thought nothing of it. She then drove to a nearby convenience store for the change she still needed.

Reasonover's mother urged her to contact the police, who'd asked the community for tips that might help solve the homicide. Ellen Reasonover did as her mother suggested. When she called the police, she used a made-up name, but used her true name as soon as she arrived at the police station.

When police asked Reasonover why she had used a false name over the telephone, she explained that, as a black woman dealing with detectives under pressure to solve a murder with a young white male victim, she had to overcome a lifetime of generalized distrust. Furthermore, her half-brothers were criminals known to local police, causing Reasonover concern about guilt by association. But she understood her civic duty, she said, so she decided to come forward.

Imagine Ellen Reasonover's surprise when, later that year, a jury convicted her of Buckley's murder. Sixteen years later, a federal judge—a Republican appointee who had once served as a prosecutor—released Reasonover from prison. Reasonover, the judge concluded, was almost certainly innocent, and without question had been a victim of prosecutorial misconduct.

After a recent Delaware Supreme Court decision, Wilmington lawyer Charles M. Oberly III wrote to E. Norman Veasey, the chief justice. Oberly, a veteran prosecutor now in private practice, had something to get off his chest about the court's ruling on another prosecutor's case. A lower court had granted the defendant a new trial partly because of "prosecutorial misconduct," a term repeated by the state's highest court in its ruling.

"The clear connotation of the word 'misconduct' is purposeful misbehavior," Oberly wrote. "During my 25 years being associated with the criminal justice system, I do not recall any instances in which a prosecutor intentionally caused error or behaved in a manner to cause a reversal of a conviction. The terminology is both unfair and demoralizing. If a defense attorney errs, the court simply refers to it as ineffective assistance of counsel or some other less damaging word. If the court errs, the judge is not designated as having committed 'misconduct.' I would like to respectfully request that the court cease using the word 'misconduct' unless the peculiar circumstances clearly call for such terminology. Instead, I would suggest that errors committed by the prosecution leading to a reversal and a new trial simply be referred to as prosecutorial error."

In the next paragraph, Oberly added a personal reference: "Approximately 20 years ago, a case of mine was reversed and the words 'prosecutorial misconduct' were used. I have never forgotten the feeling that the opinion implied—that I intended to do something wrong."

The chief justice sent a reply, addressed to "Dear Charlie."

The cliché about American jurisprudence is that the system is designed to let 10 guilty men go so that the proverbial one innocent man does not end up behind bars. By and large, the system does work that way. Prosecutors must prove their case beyond a reasonable doubt. Defendants do enjoy Constitutional rights to defense counsel, to not incriminate themselves and to be free of searches unless the police show probable cause.

Yet a 1996 law has undermined the central protection of the accused—the right of habeas corpus, which the Founders considered so important that they included it in the Constitution even before the Bill of Rights was proposed—so severely that defendants convicted in unfair trials remain in prison, even some who appear to be innocent of the crime charged.

Habeas corpus (Latin for "you have the body") is a writ designed to release a prisoner from an unlawful imprisonment. A prisoner must file a petition for a writ of habeas corpus, which directs the detaining authority—normally a prison warden—to bring the prisoner to court for a determination of the legality of his or her imprisonment and whether or not he or she should be released from custody. The "great writ" is guaranteed by Article I of the U.S. Constitution and by state constitutions.

Law enforcement officials across the nation pushed Congress and President Bill Clinton to enact what eventually became known as the Antiterrorism and Effective Death Penalty Act. The new law's intent was to bring finality to the criminal justice process by limiting habeas petitions filed by inmates after they have been convicted. In addition to setting time limits during which a habeas petition can be filed, the law requires federal courts to defer to state court rulings, unless the rulings are shown to be clearly unreasonable.

The provisions of the 1996 law might prevent the release from prison of Darryl Burton, convicted of a 1984 St. Louis murder he most likely did not commit.

A physician who botches an operation or an attorney in private practice whose incompetence costs his client a small fortune can both be sued for malpractice. A prosecutor who convicts a defendant of a crime he didn't commit, on the other hand, enjoys immunity from civil suits. That immunity was almost absolute, but a series of court rulings in the last decade have begun to whittle away at the protections for prosecutors who break rules in gaining convictions.

In 1976, the U.S. Supreme Court ruled in Imbler v. Pachtman that prosecutors should be protected by absolute immunity from civil lawsuits, reasoning that the threat of litigation from defendants might interfere with a prosecutor's job. The justices also assumed that supervisors and bar disciplinary boards would offer punishment enough to deter prosecutors from breaking rules. Research conducted since the Imbler decision suggests that in most prosecutors' offices and at most state disciplinary agencies, the justices' expectations are not being met: prosecutors are rarely disciplined for misconduct in the courtroom. The justices have not overridden the 1976 ruling.

In a separate opinion in the Imbler ruling, Justice Byron White concurred with the majority but wondered about the wisdom of extending absolute immunity to prosecutors who withheld evidence suggesting that a defendant was innocent. Prosecutors ought to live in fear that failure to disclose such evidence could lead to civil liability, White insisted. But twenty-seven years later, prosecutors have pretty much absolute immunity from civil lawsuits as long as they are acting as government advocates "intimately associated with the judicial phase of the criminal process."

In January 1999, the Chicago Tribune published a five-part series of articles that found, in the paper's own words, "nearly 400 cases where prosecutors obtained homicide convictions by committing the most unforgivable kinds of deception. They hid evidence that could have set defendants free. They allowed witnesses to lie. All in defiance of the law. Prosecutors swear to seek the truth but instead many pursue convictions at any cost. The premium is on winning, not justice."

The series, reported and written by Maurice Possley and Ken Armstrong, documented 381 cases, going back to 1963, in which courts reversed murder convictions because prosecutors presented evidence they apparently knew to be false, or concealed evidence suggesting innocence, or both.

Then, in November 1999, the Tribune published another in-depth series by Armstrong and reporter Steve Mills that examined murder cases in which Illinois prosecutors, mostly in Cook County (Chicago), had charged a defendant with a capital crime and asked for the death penalty. The journalists identified 326 reversals attributed in whole or part to the conduct of the prosecutors.

As in the first series, the reporters named names—of prosecutors, incompetent or corrupt defense attorneys, police officers, forensic scientists, judges and others within the criminal justice system. They wrote about how prosecutors used confessions extracted through police torture, used perjured testimony of jailhouse informants seeking rewards, or used unreliable analyses from law enforcement forensic laboratories.

When Larry Johnson walked out of a Missouri prison during the summer of 2002, exonerated by DNA testing from a wrongful rape conviction after avowing his innocence for 18 years, St. Louis legal community insiders nodded knowingly as word trickled out who had led the prosecution back in 1984—Nels C. Moss Jr.

Moss, assistant circuit attorney for the city of St. Louis and later a trial prosecutor in neighboring St. Charles County, earned a well-deserved reputation as an aggressive, effective trial prosecutor. During his 33 years of trying cases for the people, however, he simultaneously was a recidivist breaker of the rules by which prosecutors are supposed to operate.

After joining the St. Louis city prosecutor's office in 1968, Moss found his conduct formally challenged in at least 24 cases. In seven of those, judges reversed the conviction, declared a mistrial or issued some other ruling adverse to the prosecution.

Over the course of his career as a prosecutor, Moss reneged during trial on a pre-trial stipulation with the defense; called the jury's attention to the defendant's failure to testify, thereby compromising the Fifth Amendment rights of the accused; alluded to the defendant's uncharged criminal conduct, a violation of the rules of evidence; attacked the character of the defendant with information not in the court record; used inadmissible material from a separate trial of an accomplice; promised during jury selection or opening argument to present testimony never offered; attacked the truthfulness of defense counsel; cast aspersions on the integrity of an insanity defense; and inflamed jurors' passions during closing argument.

When one appellate panel reversed a conviction in a case won by Moss, a judge writing a concurring opinion emphasized that the blame lay with the prosecutor and not with the courts: