Turning on their own

A group of former prosecutors cites a colleague's pattern of misconduct

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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.

As knowledge of Zimmermann's behavior in the Abdur'Rahman case spread—knowledge supplemented by accounts of his behavior in other, unrelated cases—the appeal to the U.S. Supreme Court started taking shape. The six former prosecutors, who constitute a who's who of the Tennessee legal profession, wrote in their brief, "All of us handled serious felonies and several of us handled capital matters when we served as prosecutors. ... While the consequence of prosecutorial misconduct is serious in any criminal prosecution, it is harrowing in a capital case. ... The prosecution ... fell far short of the standards of our state court system and, indeed, below what we understand the federal constitutional minimum standards to be. In our view, the record below taints all members of the Tennessee Bar."

The former prosecutors' brief alleged misconduct by Zimmermann at nearly every step. "Early in his investigation," they wrote, "the prosecutor recognized flaws in his case for a death sentence ... The scientific evidence strongly suggested that [Abdur'Rahman] was not the stabber, raising doubts the prosecutor knew would preclude capital punishment. The evidence ... indicates that the prosecutor masked the weaknesses in his case by suppressing key documents and presenting misleading testimony from an accomplice."

Zimmermann's questionable actions continued after Abdur'Rahman was convicted, awaiting sentence. "The prosecutor relied heavily on a prior homicide conviction in his request for the death penalty. In order to prevent the defendant from explaining mitigating facts concerning this prior offense, the prosecutor misrepresented those facts to defense counsel and falsely represented that an FBI agent would testify to the prosecutor's version of the events if the defense put those circumstances at issue."

The previous killing involving the defendant occurred in 1972, inside a federal prison. Zimmermann obtained the transcript of the trial connected to that 1972 death, but did not disclose the transcript to defense counsel. From reading the transcript, Zimmermann should have known that the fatal fight resulted from rumors of homosexual conduct, which is not what Zimmermann reportedly told defense counsel—that the death resulted from "a turf war in the prison between the two gangs as to who would control the drug trade" there. Zimmermann reportedly made that statement with an FBI agent present, an agent listed by the prosecutor as a witness against Abdur'Rahman.

The six former prosecutors wrote that in their experience, "the existence of a prior homicide, particularly one in prison, is a significant factor in the jury's determination whether life imprisonment is sufficient to guarantee the safety of the community. A killing over gangs and drugs presents a very different picture of the cold-bloodedness and dangerousness of a defendant than does an outburst stemming from a series of homosexual assaults on the defendant while he was incarcerated and unable to escape from them." Zimmermann's characterization of Abdur'Rahman's previous crime might have persuaded the jurors to impose a death sentence, the brief states.

"The prosecutor's misconduct was egregious," the six former prosecutors wrote. "If, as it appears, he made a representation to defense counsel he knew to be false in order to cut off an avenue of defense, that falsehood violates all standards of professional conduct."

Furthermore, the brief continued, Zimmermann's alleged misrepresentation of the 1972 prison death "was part of an even bigger distortion. The prosecutor systematically suppressed and misrepresented the evidence of [defendant's] mental illness," including its relationship to his crimes. The former prosecutors wrote that Zimmermann knew from the 1972 trial transcript the defendant pled not guilty by reason of insanity. Still, Zimmermann reportedly told authorities while prosecuting the later murder that Abdur'Rahman never relied on an insanity defense in 1972. The result of Zimmermann's misrepresentation, the brief says, is that mental health professionals evaluating the defendant's competency to stand trial reached faulty conclusions based on faulty information.

A large portion of the brief uses Zimmermann's own words and actions to question his credibility. For example, Zimmermann allegedly knew he could have difficulty proving the defendant wielded the murder weapon, a knife, because an accomplice with credibility problems provided an explanation for the blood spatter that seems to belie the forensic evidence. Zimmermann "shielded from the defense and the jury this major weakness in his case," the six former prosecutors say. "The jury heard none of the evidence establishing that the person who did the stabbing would have been covered with blood, that [Abdur'Rahman's] long black coat had no traces of blood, and that witnesses saw [him] in the long black coat and did not see him remove it."

The brief attributes ill intentions to Zimmermann at almost every turn. For example, prosecutors wrote that Zimmermann "withheld from trial counsel the lab report showing no blood on [Abdur'Rahman's] coat, pants and shoes; the prosecutor gave this report to [Abdur'Rahman's] original lawyer, but did not give it to ... trial counsel, who requested discovery." The U.S. District Court ruled that the lab report Zimmermann supplied to the original lawyer on the case sufficed—no discovery violation, no misconduct. The six former prosecutors retort in their brief, "The district court ruled that defense counsel was ineffective for failing to obtain the report. The district court did not rule on the prosecutor's purposeful distortion of the evidence concerning the identity of the stabber, of which the withholding of the lab report was only one aspect."

The brief turns the ineffective assistance of defense counsel against Zimmermann as well: "Even though the prosecutor withheld crucial police reports and other documents, competent defense counsel might have learned enough about the facts to challenge the prosecutor's version of events. The prosecutor realized that defense counsel knew little about the facts, and exploited that lack of preparation. The prosecutor's conduct was no less improper because competent counsel might have minimized the damage. In fact ... the prosecutor's exploitation of defense counsel's inadequacies in order to win at any cost was a gross deviation from his obligation to seek justice."

On December 10, 2002, the U.S. Supreme Court, without explanation by the majority, dismissed the writ of certiorari as improvidently granted, meaning they decided not to rule on the merits of Abdur'Rahman's appeal. Justice John Stevens dissented, writing that the majority "presumably" dismissed the writ because of technical jurisdictional issues.

The Abdur'Rahman case is not the only time Zimmermann might have bent rules in pursuit of a conviction. In 2001, the Tennessee Court of Criminal Appeals commented on Zimmermann's conduct in connection with the conviction of Frank Michael Vukelich for conspiracy to deliver marijuana and money laundering. After a hung jury in the initial trial, a second trial began. During the first trial, Zimmermann had elicited testimony from a witness that he and Vukelich smoked marijuana together. The defense objected, and the judge sustained the objection. In the second trial, Zimmermann asked a similar question of the same witness, who testified the same way. After a defense objection, the trial judge admonished Zimmermann. The prosecutor apologized, saying he had forgotten the trial court's earlier ruling.

In 1999, the Tennessee Supreme Court upheld the murder conviction of Donald Ray Middlebrooks, despite the court's agreement with the defendant that Zimmermann crossed the line during closing argument to the jury. Middlebrooks said Zimmermann made inflammatory references to Biblical passages and to the desire of the victim's family for a death sentence. The appellate judges ruled Zimmermann offered "an improper characterization" of the family's views, but decided the remark should be placed in the harmless error category. As for the Bible passages, the judges said, "We have condemned Biblical and scriptural references in a prosecutor's closing argument so frequently that it is difficult not to conclude that the remarks in this case were made either with blatant disregard for our decisions or a level of astonishing ignorance of the state of the law ... As we have reiterated time and time again, the prosecutor has a legal and ethical duty to refrain from this sort of misconduct." Despite the strongly worded admonition, the court said the remarks should not result in a reversal of the conviction.

About the Middlebrooks case, Zimmermann notes that his reference to Biblical passages came in rebuttal to defense counsel references to the same holy book. In retrospect, Zimmermann says, "There is no doubt now that my rejoinder in the heat of the trial to the improper remarks of the defense counsel were improper." Still, Zimmermann says, he believed at the time he had to rebut in some fashion, because it appeared defense counsel's Biblical references had made a positive impression on some of the jurors.

Zimmermann, who has said little publicly about the allegations in the prosecutors' brief, responded to the Center for Public Integrity's request for comment. He counters every point in the brief from the six former prosecutors, in both the Abdur'Rahman case and the other cases mentioned. An overarching point made by Zimmermann is that no court examining the Abdur'Rahman record has found reason to reverse the conviction or the death sentence as a result of the prosecutor's conduct.

Regarding the allegation he "withheld and misrepresented evidence to convince the trial jury that [Abdur'Rahman] rather than an accomplice [Miller] performed the stabbing," Zimmermann points out what he says are errors of fact as well as mistaken conclusions. For example, the brief to the U.S. Supreme Court says the clothing Miller wore during the crime "was never located or tested for blood." Zimmermann says that police seized the jacket from Miller's car, later introducing it as evidence at trial. Various lawyers for Abdur'Rahman have seen the jacket, he told the Center. He presumes they never took it away for testing because a visual inspection shows no sign of blood. Given that Abdur'Rahman's expert witness on blood spatter testified the actual murderer would be covered with the substance, Zimmermann thinks he knows why the defense never tested Miller's jacket: If Abdur'Rahman is innocent because his coat was clean, then Miller must be presumed innocent, too. But that argument might not play well to a jury, because the facts are undisputed that one of the two men is a murderer.

Zimmermann supplied detailed information to rebut the allegations that he failed to disclose a laboratory report showing no blood on Abdur'Rahman's clothing. Abdur'Rahman's first attorney received the report, and has testified he transmitted case files to his successor. Zimmermann provided a letter to the successor attorney after receiving a discovery request. The letter says the information requested is available from the court and the initial defense lawyer. Zimmermann then adds, "If you want us to photocopy those for you and submit them to you, we will be happy to do so."

Zimmermann provided similarly detailed responses to every allegation made against him concerning the Abdur'Rahman case. He also addressed the additional cases he prosecuted which constituted, for the six former prosecutors, his "history of misconduct" similar to what is alleged in the Abdur'Rahman case.

In 2001, the Tennessee Court of Criminal Appeals reversed the murder conviction of Claude Francis Garrett, a case mentioned in the prosecutors' brief as one in which Zimmermann appears to have knowingly misrepresented forensic evidence.

Zimmermann told the jury that Garrett locked the victim in a room, then set the house afire. Three documents figure in the debate over whether the prosecution violated disclosure rules. While addressing all three documents, the appellate judges focused on the 11-page report suggesting the door was unlocked.

"The evidence ... showed that the prosecutor led defense counsel to believe that the state had no information about the locked or unlocked status of the utility room door. However, at trial the State's witnesses testified that the utility room door was locked and the prosecutor submitted to the jury as the theory of the state's case that the defendant locked the victim in the utility room and set the house on fire. Therefore, the state did have, prior to trial, information that the door was locked. ... [The state] also possessed the ... report which indicated otherwise—that [the] fire captain ... who was the first to enter the utility room and find the victim's body, found the door unlocked." When questioned after trial about why he excluded the 11-page report from discovery to the defense, Zimmermann said he believed the detective's recollection of his discussion with the fire captain to be vague, while the fire captain insisted he said nothing about an unlocked door.

The appellate judges commented they felt "extremely troubled with ... Zimmermann's decision to himself determine the reliability of the evidence and to refuse to turn over evidence he believes is unreliable, especially when the evidence is requested and is exculpatory."

In 2002, the Tennessee Supreme Court Disciplinary Board of Professional Responsibility censured Zimmermann in connection with the Garrett case, sending notice to judges and journalists about the prosecutor's misconduct.

About his censure by the disciplinary board for his conduct in the Garrett case, Zimmermann explained that he did not share the pre-trial statement of a police detective who talked to a firefighter because the document was inadmissible. Zimmermann said the firefighter denied the accuracy of the detective's written account, and the detective testified at a post-conviction hearing that he could not be certain of the accuracy himself. So why did the disciplinary board publicly censure Zimmermann? He said the answer is simple—various parties viewed the facts differently. "The trial court ruled that the 'impeachment' evidence was not material because it would have been inadmissible ... and held there was no Brady violation by me. The state attorney general wrote in his brief on appeal that the non-disclosure did not violate Brady. The Court of Criminal Appeals disagreed, and I received a public censure from the disciplinary board."

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