As criminal defense lawyers we know a thing or two about “prosecutors of the year.” In October 2011, we posted a couple of blistering pieces about former Williamson County, Texas, “Prosecutor of the Year” Ken Anderson, now a criminal district court judge. Anderson is the prosecutor who withheld critical exculpatory evidence in the case of Michael Morton that resulted in the innocent man spending 25 years in the Texas prison system for a crime a serial murderer committed. Last year a state Court of Inquiry found Anderson guilty of not only withholding evidence that would have exonerated Morton but lying to the trial judge about it as well. His case is currently pending before the State Bar for possible disciplinary sanctions.
This past September we posted a piece about the case of Debra Milke who was convicted, and sentenced to death, in 1990 in Phoenix, Arizona for reportedly hiring two hit men to kill her four-year-old son so she could collect $5,000 from an insurance policy on the child. Last March the Ninth Circuit Court of Appeals reversed Milke’s conviction and death sentence because the prosecution engaged in egregious misconduct. In our post, we made this observation: “The issue is that Milke was denied a fair trial because the prosecution withheld significant Brady evidence that may have changed the outcome of the guilty verdict. Brady had been law 27 years in 1990 when Milke was tried. The prosecution knew full well it had a constitutional obligation to disclose the impeachment evidence … and failed to do so. And it can reasonably be inferred that the prosecution would have let Milke be executed based solely on the testimony of a well-documented liar. This prosecutorial misconduct is worse than shameful; it’s downright criminal.”
On October 28, 2013, Michael Kiefer, a prominent and highly respected journalist with the Arizona Republic, published a four-part series about the prevalence of prosecutorial misconduct in that state’s death penalty cases. We were not surprise to learn that Noel Levy, the prosecutor responsible for the misconduct in Milke’s case, was Arizona’s “Prosecutor of the Year” in 1990. Kiefer reported that the Chief Judge of the Ninth Circuit, Alex Kozinski, was so upset by Levy’s misconduct in the Milke case that he “referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements.”
Levy’s style of misconduct is systemic in the Arizona death penalty system. Kiefer’s investigation discovered that in half of all the death penalty cases in the state since 2002 involved allegations of prosecutorial misconduct by the appellate attorneys assigned to handle those cases on appeal. Shockingly, the Arizona Supreme Court validated half of those allegations. Worse yet, reported Kiefer, “since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials …”
And what happens to these prosecutors who so engage this unethical, even criminal, conduct that continues to fuel a legion of miscarriages of justice? Nothing, really. In fact, as Kiefer observed, “they are often congratulated” by their peers. In 2009, the Northern California Innocence Project released a report titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” That comprehensive report dealt with 4,000 California and federal appellate court rulings between 1997 and 2009 concerning prosecutorial misconduct. The courts found only 707 cases involved “actual misconduct,” and in only 159 of them was a finding made that the defendant suffered “actual harm.” Even worse, as Kiefer pointed out, only 1 percent of the prosecutors in those cases were disciplined.
More telling was a 2012 study conducted by the New York-based Innocence Project that identified 91 Texas cases between 2004 and 2008 in which prosecutorial misconduct was found, and not one resulted in any kind of disciplinary action.
Arizona proved no different than California or Texas. Between 2002 and 2013, the state’s highest court heard 82 direct appeals in death penalty cases—42 of which had allegations of prosecutorial misconduct or a lesser degree of misbehavior. 33 of those cases came out of Maricopa County. The Supreme Court found “impropriety or misconduct” in 18 of the 42 cases. But Kiefer reported that only two cases were reversed because of the “misbehavior,” and only two prosecutors were disciplined. The reason: the court found that the misconduct in the other cases was no more than “harmless error.” This prompted Susan Corey of the Office of the Legal Advocate to tell Kiefer: “There are no consequences. There’s absolutely no repercussion.”
And that is the disheartening component of prosecutorial misconduct: most judges at the appellate level and attorneys who make up state bar disciplinary committees seem to feel that misconduct is a natural byproduct of law and order, a necessary evil.
Let’s take the case of Pima County prosecutor Ken Peasley, for example. He was Arizona Prosecutor of the Year in 1994 and again in 1996. He prosecuted 140 murder cases—approximately 60 of which were capital cases. Kiefer called him a “death-penalty machine” who endeared himself to judges and attorneys alike with a charming and forceful personality. In 1994, the same year he was prosecutor of the year, Peasley knowingly used perjury testimony to convict three defendants in the murders of three people in a South Tucson store. Much like Ken Anderson, Peasley not only “encouraged” the witness to commit perjury, he lied to the judge and jury about it. It was enough to get two of the defendants new trials, only to have Peasley use the same perjured testimony to get one of the men sent back to death row.
In 1997, the attorney for one of the defendants filed a complaint against Peasley with the state bar. Kiefer said “judges rallied around him” while he traveled the state training other prosecutors and picking up “national awards.” It took the State Bar seven years before it finally got the “Prosecutor of the Year” and saw him disbarred by the Arizona Supreme Court. That same year (2004) one of Peasley’s protégées in the Pima County District Attorney’s Office, Thomas Zawada, was also “disciplined” for misconduct in a 10-year-old murder case. The misconduct involved: “ … (a) appeals to fear by the jury if (the defendant) was not convicted, (b) disrespect for and prejudice against mental health experts that led to harassment and insults during cross examination, and (c) improper argument to the jury.”
Pima County District Attorney Bill Montgomery told Kiefer that he “had beefed up prosecutor training to avoid misconduct and maintains an ethics committee to look into the actions of prosecutors, judges and defense attorneys alike.” Montgomery explained that he was “trying to create an environment where prosecutors hold each other accountable.”
Life was not kind of Ken Peasley after his disbarment. The two-time prosecutor of the year worked as a paralegal before being diagnosed with an “aggressive cancer” that took his life in September 2011. An internal memo from the Pima County Sheriff’s Department said the controversial prosecutor “passed away peacefully at home.” It is not known how many death row inmates who were victims of his prosecutorial misconduct “passed away peacefully” in the state’s prison system or the death chamber.
The American Bar Association says “the duty of the prosecutor is to seek justice, not merely to convict.” Too many prosecutors abandon this duty once inside a courtroom charged with the responsibility of prosecuting those charged with a crime. They become almost obsessed with the belief that they have a duty to convict, at any costs. Ken Peasley and Ken Anderson, brothers in misconduct, are models of this warped idea of justice.