A short history of exposing misconduct

An unlikely cast of characters has shone a spotlight on bad prosecutors, and on occasion, sparked reform

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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.

On Jan. 19, 2000, Mills and Armstrong reported that former Chicago police officer Steve Manning had become the thirteenth Illinois Death Row inmate to be cleared, versus 12 executed. The Tribune had explained the holes in the case against Manning as part of the November series. On February 1, 2000, Mills and Armstrong reported probably the most consequential story that could arise from a journalistic expose: George Ryan, the Republican governor of Illinois who had previously supported the death penalty, announced a moratorium. He cited the work of the Tribune as the foundation of his decision.

In-depth, systematic scrutiny of prosecutors in specific districts like the Tribune investigation has been rare throughout the decades. But an unlikely cast of characters—including university professors, a judge, an author best known for creating a fictional defense attorney, and a handful of journalists—studied the issue of prosecutorial misconduct over the years, raising public awareness and on occasion sparking reforms.

The first in-depth examination was more than 70 years ago. In 1932, Yale University law professor Edwin M. Borchard wrote his book Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice. Borchard understood that many readers would find his case studies unbelievable, given the overwhelming faith the public had in the court system. As a prosecutor in Worcester County, Mass., put it, "Innocent men are never convicted. Don't worry about it, it never happens in the world. It is a physical impossibility."

It is unknown how that prosecutor reacted to Borchard's case studies, which included eight instances of defendants convicted of murder when the supposed victim turned up later, alive.

Borchard was charitable to prosecutors in passage after passage, noting how they were "obliged to take the evidence as presented...including the uncontrollable perjury of vengeful witnesses, and lay it before the jury without realization of its worthlessness. ... Except in the few cases where evidence is consciously suppressed or manufactured, bad faith is not necessarily attributable to the police or prosecution; it is the environment in which they live, with an undiscriminating public clamor for them to stamp out crime and make short shrift of suspects."

Borchard did point out, however, the self-interest that was also part of the environment: "It is common knowledge that the prosecuting technique in the United States is to regard a conviction as a personal victory calculated to enhance the prestige of the prosecutor."

Following in Borchard's wake was lawyer Erle Stanley Gardner, best known as the creator of the fictional defense attorney Perry Mason. Gardner used the proceeds of his novels to fund research into real life miscarriages of justice, and created the Court of Last Resort in the late 1940s, an unofficial tribunal that investigated suspected wrongful convictions.

In 1952, Gardner wrote a book about the tribunal; he also published numerous articles and paid for advertising campaigns that helped individual defendants receive justice. Gardner's efforts caught the public's imagination, but not even an author with Gardner's reach succeeded in reforming the systemic problems that led to unfair trials.

New York State Judge Jerome Frank collaborated with his daughter Barbara Frank, an attorney, to write the 1957 book Not Guilty. Like Borchard and Gardner, the Franks helped to set the standard for tracking misconduct. In addition to documenting cases in which individuals were denied a fair trial or wrongfully convicted, the Franks suggested reforms to the court system to prevent such miscarriages of justice in the future.

In the 1960s, others began considering the problem. Journalist Edward D. Radin carried on the public education campaign, turning up unfair trials and cases of actual innocence by tirelessly reading newspapers and magazines. Some publications, Radin found, "overlook or ignore such incidents in their own communities or states but print some of those that occur elsewhere. It is only by a daily culling of newspapers from many sections of the country that this finger pointing in other directions becomes obvious, and also it is only as the clippings mount that one realizes how often injustices do occur."

In 1964, Hugo Adam Bedau, a university philosophy professor, joined the public debate with his book The Death Penalty in America. Bedau approached prosecutorial conduct and actual innocence issues from an anti-death penalty perspective. The philosopher never lost interest in the subject. In 1987, he and sociology professor Michael L. Radelet collaborated on a Stanford University Law Review article about wrongful convictions that led to an impassioned rebuttal from U.S. Justice Department lawyers.

To reach a wider audience, Radelet and Bedau asked professional writer Constance E. Putnam, Bedau's wife, to help them with a book. In Spite of Innocence: Erroneous Convictions in Capital Cases, published in 1992, covered about 400 defendants, and expanded on the Stanford University Law Review article. Both Bedau, who retired from Tufts University, and Radelet, who consults with other researchers from the University of Colorado campus, continue to write and publish.

In Cook County, Ill., Rob Warden started reaching a small but intensely interested audience with his magazine Chicago Lawyer, founded in 1978. Year after year, he and his small staff exposed misconduct by police and prosecutors leading to unfair trials and sometimes wrongful convictions.

Warden began to achieve recognition outside Illinois after collaborating with David Protess, a freelance journalist and Northwestern University journalism professor. Protess, some of his students and Warden helped free innocents from prison while, amazingly, identifying the actual murderous perpetrators. During the 1990s, Protess and Warden collaborated on two best-selling books together, each book about a case of actual innocence.

After selling his magazine in 1989, Warden started changing the system from the inside, first as executive officer for the Cook County state's attorney, later as executive director of the Northwestern University Center on Wrongful Convictions, a position he still holds.

In 1991, Martin Yant, a Columbus, Ohio, journalist, published his book Presumed Guilty: When Innocent People Are Wrongly Convicted, a compilation that resonated far beyond the borders of his state.

Sheila and Doug Berry started researching a case of possible innocence in 1994, while living in Wisconsin. They became convinced that a woman convicted of murder, Penny Brummer, was innocent. The Berrys wrote about the case and helped Brummer obtain representation for an appeal. "We recognized the widespread nature of wrongful convictions," Sheila Berry says, "and, knowing that we could not possibly research and write books on all the cases, decided to start Truth in Justice (a Web site) to heighten public awareness."

In 1999, the role of prosecutorial misconduct in unfair trials and wrongful convictions reached a wider audience with the publication of newspaper-reporter-turned-true-crime-author Edward Humes' book Mean Justice. The book started out as an examination of one murder case in Bakersfield, Calif. It ended up as an expose of the county's veteran district attorney and some of his trial prosecutors.

The three reporters and their editors at the Chicago Tribune made the biggest difference, though. In addition to changing perceptions, they happened to change public policy. In 2003, shortly before leaving office, Gov. George Ryan commuted the sentences of everyone on death row to life imprisonment.

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