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Prosecutors vs. Journalists: The Gloves Are Off

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Joshua Marquis, district attorney for Clatsop County, Oregon, didn't simply believe the Chicago Tribune got the story wrong--he knew it. As we talked last week, he dug into his Tribune file and read me the following passage:

"A [national] Tribune search found six prosecutors this century...who have faced criminal charges alleging the sort of misconduct at the heart of the DuPage 7 indictments--concealing evidence or using false evidence. Of those six, two were convicted of misdemeanors and fined $500 each, two were acquitted and charges against the other two were dropped before trial."

Marquis was reading from "Trial & Error," a 1999 Tribune investigative series subtitled "How prosecutors sacrifice justice to win." He told me, "I'm a DA because my predecessor went to jail. The whole thing was on Court TV."

The predecessor, Julie Leonhardt, was convicted in 1994 of forgery, tampering with public records, and misconduct. She'd tried and failed to squelch a reckless-driving charge against her fiance, a convicted felon on probation. Out of apparent spite, she'd then issued a fraudulent indictment against two police officers, one of whom had been connected to her boyfriend's case, charging them with criminal conspiracy. Leonhardt spent two months in jail and was disbarred.

"My predecessor is a disgrace to my profession," said Marquis. She's also a contradiction of the Tribune's premise that, as Marquis put it, "by their fundamental nature prosecutors are a bunch of rotters and nothing ever happens to them when they get caught." Leonhardt was an embarrassing exception to overlook. The Tribune had published a story on her sentencing.

The thing is, the Tribune didn't overlook Leonhardt. Ken Armstrong, the Tribune's legal reporter who with Maurice Possley wrote "Trial & Error," knew about her case and ignored it. He told me this week that he only counted prosecutors who'd faced criminal charges for misconduct that caused a conviction to be reversed; Leonhardt's case against the two cops collapsed before they ever went to trial. Armstrong and Possley made their criteria pretty clear in the first few paragraphs of their series. The passage Marquis read to me showed up midway through the third day's installment, and it wasn't written as carefully.

So Marquis, an experienced prosecutor who was pretty sure what the Tribune meant to say but recognized that it hadn't, has an irrefutable contradiction he can point to.

The Tribune had high hopes that the combination of "Trial & Error" and the later "Failure of the Death Penalty in Illinois," reported by Armstrong and Steve Mills, would win it a Pulitzer Prize this spring. Pulitzer judges weigh nominated stories by what they accomplish, and the Tribune's had transformed the death penalty debate in America. In reaction, Governor Ryan ordered a moratorium on executions in Illinois, forcing the question on governors across the country.

But though the Tribune series did win plenty of honors--including a National Headliner Award, a Scripps Howard Foundation National Journalism Award, and a George Polk Award--the biggest one got away. A finalist in the public-service category, the Tribune entry was rejected by the Pulitzer Board, which received blistering letters from the National District Attorneys Association, the Illinois State's Attorneys Association, and a group of assistant state's attorneys in Cook County. And the argument continues.

Journalists celebrate the Tribune studies, particularly the second, and prosecutors condemn them, particularly the first. Last month, Brill's Content placed the death penalty series on its "honor roll," observing that "rarely does journalism have such a direct impact on a major area of public policy," and reporting that "lawyers and journalists involved in death penalty cases...say the scope of the journalists' work brought the death penalty debate to a level beyond polemics." In April Editor & Publisher said the Tribune had thrown down the gauntlet for newspapers in other states: "If reporters were able to find so many inmates wrongfully convicted in Illinois--which has executed 12 people since 1977--where are the similar projects in Florida, which has executed 46; Virginia, with 76 executions; or Texas, with 211?"

Texas--whose governor, George W. Bush, has boasted that his capital-justice system works flawlessly--begs for scrutiny, and now it's getting it. The Tribune and New York Times have both sent teams to comb Texas's death row for injustices, and when Bush changed his stripes last week, postponing an execution for 30 days to allow for DNA testing, the Tribune played the story on page one.

But prosecutors continue to strike back. The president of the National District Attorneys Association immediately wrote Editor & Publisher to assail "Trial & Error" (which wasn't the series the magazine focused on) as "inaccurate, misleading, and based on fatally flawed research." Joshua Marquis sits on the board of the NDAA, and he tells me he suggested the research that produced the numbers the NDAA is rebutting with. He cochairs the NDAA's media committee, "which I helped found on the theory prosecutors are not doing enough to reach out and be forthright and available to the press."

Marquis accuses the Tribune of trying to project Illinois' judicial shame onto the rest of the country. He argues that there have been some 400,000 homicide prosecutions during the period the Tribune examined--the paper's earliest case was from 1963--and even if every last case counted by the Tribune were a solid-gold example of prosecutorial misconduct, this would still leave prosecutors on the side of the angels 99.9 percent of the time. That's why Marquis, appearing with Ryan on Good Morning America this past Monday, told the governor that the only way to make capital punishment more fail-safe than it already is would be to abolish it.

But Marquis and the NDAA don't accept the Tribune's 381 cases at face value. Marquis told me three of the cases were from Oregon, so he looked them up and discovered they were all 25 to 30 years old and that in all of them the defendants were retried and reconvicted. "By prosecutorial misconduct the Tribune means 'evil by prosecutors,'" Marquis said, but in his view the misconduct here was technical--prosecutors being held responsible for evidence that should have been turned over to the defense.

In his letter to Editor & Publisher, president Stuart VanMeveren of Fort Collins, Colorado, wrote that the NDAA had developed its own information "concerning 221 of 384 cited cases" (for some reason he didn't use the Tribune's number) and concluded that clear or possible misconduct could be identified in less than a third of them. He reported that in 26 percent of the 221 cases the defendant went free, either immediately or after acquittal at a retrial, while over half the time the defendant wound up retried and convicted of (or pleading guilty to) the same or a lesser offense. Said VanMeveren, "Our findings belie the impression given by the 'Trial and Error' series that all of the cases resulted in 'exoneration.'"

Did the series give any such impression? Did it intend to? Yes and yes, says Marquis. "Why does the Tribune use words like 'innocent,' 'exonerated,' and 'free'?" he wondered. "Because it wants to convey to its readers these were people who did nothing wrong who were snatched up by a corrupt system and thrown into prison."

Given the subject matter, I'm not sure that words like "innocent," "exonerated," and "free" were avoidable. The declaration on page one of the first "Trial & Error" installment, "Innocent people went to prison, some to Death Row," is manifestly true. But Marquis is clearly correct that the Tribune planted the idea of a "corrupt system." Also on page one opening day was the headline "The verdict: Dishonor," the subhead "How prosecutors sacrifice justice to win," and the thumbnail description of the story asserting "A Tribune investigation finds 381 wrongful homicide convictions." The opening sentence began, "With impunity, prosecutors across the country have violated their oaths and the law."

This language struck prosecutors like a fist to the face. Marquis knows that first line by heart. But Armstrong points to a chart the Tribune published the first day. It broke out 67 of the 381 cases, the ones where the defendants originally received death sentences, and reported what happened after they were granted new trials: 24 were freed, 4 pleaded guilty in return for immediate or early release, 25 were reconvicted but escaped the death penalty, 4 were reconvicted and returned to death row, and 10 cases were still pending.

"And they're trying to say we in some way were saying all 381 were innocent!" Armstrong exclaims. The series rises or falls on the integrity of those 381 cases, and Armstrong calls them "a conservative estimate using a tightly defined category"--homicide convictions reversed because of prosecutorial misconduct. No other felony convictions were looked at, he says, and not counted were convictions "where the appellate courts reversed on some other basis and in passing mentioned prosecutorial misconduct."

Armstrong says, "If we weren't confident, would we have put all 381 names on our Web site? I spent two years researching this."

He's shown me the opinions of the higher courts in the three Oregon cases Marquis said didn't measure up. They make dry reading. There's no ring of indignation, no suggestion that the truth had been maliciously concealed or that these reversals might be rescuing the innocent. A dissenting judge in one case objected to reversing a conviction on the basis of "mere technicalities based on imaginary possibilities."

But the technicality that prevailed in all three cases was the court rule that evidence that might help the defense must be given to the defense. The prosecution hadn't done that--why it hadn't didn't concern the higher courts--and therefore the defendants had been denied due process. In the language of the Tribune, "prosecutors concealed evidence suggesting innocence." In the language of prosecutors, a mistake was made that would be corrected at retrial.

Prosecutors and the press are speaking past each other. And prosecutors, in combat mode, are picking and choosing among the facts at hand to convict the Tribune of irresponsible, Pulitzer-chasing journalism.

Julie Leonhardt is one of those facts, and what would a jury make of her? The installment of "Trial & Error" that might have mentioned her but didn't was devoted to the saga acquiring totemic significance among American prosecutors--the fall and rise of Rolando Cruz in Du Page County. It's a story that began with the 1983 murder of Jeanine Nicarico, had Cruz and Alejandro Hernandez convicted and sentenced to death, retried and reconvicted, and eventually freed in 1995, and took an astonishing turn in 1996 when a 47-count indictment accused three prosecutors and four sheriff's officers of framing Cruz to put him on death row.

That trial began the week after "Trial & Error" ran in the Tribune. "I can't imagine a newspaper writing stories banging the drum while a trial is under way," Marquis told me. "I think for the Tribune it would have been a much better story if the Du Page 7 had been convicted. The Tribune claimed [prosecutor Patrick] King rubbed his hands and wanted to convict Cruz, not that he made mistakes."

Marquis told me the name Rolando Cruz is familiar to prosecutors everywhere.

Because Cruz's prosecutors wound up on trial themselves? I asked.

"Not so much that, probably, as because of the claim that this man was on death row because he was framed," he said. "That is such a dramatic accusation, and so serious if true, it resonates. The idea we will go out and recklessly prosecute innocent people or even people who might be innocent is our worst nightmare.

"Cruz's name has been picked up as an innocent man framed by cops. I have substantial doubts about Cruz's innocence after what I've read, but if there are substantial doubts, in our system we acquit people. But that's radically different from somebody being an innocent person." Marquis--judging Cruz from a great distance, relying by his own admission on second- and thirdhand information, and almost certainly reflecting the view of many more prosecutors than himself--refuses to think of Cruz as exonerated. He's a bad guy who got off.

The idea that Cruz was originally the victim of but ultimately the beneficiary of "mistakes"--the sort of well-meaning mistakes for which no one need be held accountable--would offend any journalist with firsthand knowledge of his three trials. But that happened to be the defense in the Du Page 7 trial--Tribune columnist Eric Zorn called it the "Mayberry defense"--and it worked. Marquis pointed me to an elaborate "time line" that the Tribune published with "Trial & Error" and posted on its Web site. It begins with Nicarico's murder and ends with the Du Page 7 trial about to begin. It's still posted on-line, and as of Tuesday it hadn't been updated, even though the Du Page 7 trial ended a year ago last Sunday. "If you're an outsider," said Marquis, "you'd never know they were acquitted."

Score another point for the prosecutors. What jury would buy the Tribune's lame explanation--which I believe--that on-line journalism quickly becomes orphaned journalism, out of sight, out of mind, forgotten by the people who put it there? "To suggest we tried in any way to bury the ultimate findings in that case would be preposterous," says Armstrong.

"What's happened in America," Marquis told me, "is that the anti-death-penalty people have lost the debate. I live in a very progressive state that abolished the death penalty by popular vote in 1964 and reinstated it in 1984, also by popular vote. But the point is this: since the anti-death-penalty people have lost the argument, they've changed the debate and said, 'OK, you may be for the death penalty, but surely you're not for an innocent person going to death row.' And they've created what I consider this new urban myth--innocence on death row. Of the 13 people who were on death row in Illinois, my understanding is 4 or 5 of them didn't do it. The rest of them clearly didn't get due process, but..."

Just four or five? Here, sketchily presented, are all of them. Perry Cobb and Darby Tillis were tried three times for a 1979 double murder before the state could get a conviction, which the supreme court overturned because of errors by the judge--who was eventually convicted of taking bribes to fix cases and himself imprisoned. Cobb and Tillis were tried twice more and acquitted in a bench trial in 1987. Joseph Burrows was freed in 1994 after two witnesses to a 1989 murder recanted. Cruz and Hernandez were freed in 1995.

In 1996 Verneal Jimerson and Dennis Williams of the Ford Heights Four were exonerated by DNA evidence of a 1978 double murder that others have confessed to. Gary Gauger's 1994 conviction for the murder of his parents was overturned two years later by the same judge who sentenced him, on grounds that there hadn't been enough evidence to justify arresting him in the first place. Last year a federal wiretap picked up two gang members discussing how they'd killed Gauger's parents while trying to rob them. Carl Lawson's conviction for a 1990 murder was overturned because his public defender had been a prosecutor when he was arrested and his trial judge had denied him funds to hire an expert to challenge the evidence against him. He was tried twice more and eventually acquitted.

Last year the supreme court found that the witness against Steven Smith had no credibility, vacated his 1985 murder conviction, and ruled that he couldn't be retried. Anthony Porter was cleared last year, two days before his scheduled execution, when another man confessed to the two murders Porter had been convicted of. On death row since 1989, Ronald Jones was freed last year after DNA testing showed that the semen found inside a murdered woman wasn't his. And this year the supreme court threw out a jailhouse snitch's testimony that had convicted Steve Manning, and charges against him were dropped.

Manning is now imprisoned in Missouri for kidnapping, and Marquis scores points by saying so. "I was on air with your beloved governor," he told me, "and he was talking about 13 innocent men. I said, 'Wait a minute, let's talk about Steve Manning. He's doing life plus 100 years.'"

How does Manning's criminal record in Missouri mitigate the misconduct that condemned him in Illinois? "It doesn't," Marquis said. "But it goes to the heart of my criticisms. Are there problems with the system? Yes. Have there been abuses by police, by judges, by prosecutors? Yes. It's not that there aren't issues that need to be raised. It's framing the debate in the absolute context of the evil, venal prosecutors so anxious for a conviction that they'll throw innocents into prison or worse, when the real issue is the morality of the death penalty. Which is a valid issue."

News Bite

My item last week on Saul Bellow's Ravelstein, Garry Wills, and Studs Terkel was underreported by half. Terkel praised Wills's column blasting Bellow's book and wondered why the Sun-Times didn't run it. I wrote that editorial page editor Steve Huntley explained to me that since his paper hadn't covered the debate over Ravelstein--which is a lightly fictionalized rendering of Bellow's friendship with the late Allan Bloom--readers wouldn't know what to make of Wills's contribution to it.

Now Huntley tells me I misunderstood him, and I obviously did. The editorial page had ignored the debate, but Showcase weighed in in a big way April 16, with a lukewarm review by Wendy Smith, a profile of Bellow by book editor Henry Kisor, and an essay by Andrew Patner that wondered whether Bellow's book had violated not only Bloom but other lightly disguised University of Chicago personalities. "What was my Sun-Times Ravelstein piece, and what was Wendy Smith's review? Chopped liver?" Patner E-mailed me after reading last week's Hot Type. No, mystery meat. The mystery is how I missed them when they were published.

But now that I understand Huntley better, I don't get his reason for spiking the Wills column. Why would it matter if Wills's views on Ravelstein were the first to appear on the editorial pages? Those pages exist so top intellects can sound off on subjects that already showed up in other parts of the paper.

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