Study focuses on prosecutorial errors.

Byline: Bill Bishop The Register-Guard

A nationwide study cites seven Lane County cases, from a 1970 rape case to a 1986 aggravated murder trial, in an examination of misconduct and mistakes by prosecutors, the largest such review ever attempted.

The study by the Center for Public Integrity found more than 2,000 appeals court rulings reversed criminal cases because of misconduct and mistakes by prosecutors over the past 30 years. It also found 28 cases where prosecutorial misconduct put innocent people in prison and allowed the guilty to remain free.

In Oregon, the study found a wide range of errors in 44 cases.

"Prosecutorial error and misconduct occurs with enough frequency in so many jurisdictions across the United States that failing to institute reforms is simply an act of willful denial," said Steve Weinberg, who compiled the data for the Washington, D.C.-based center.

Center officials said the study represents just a sampling of abuses because it didn't delve into the 95 percent of cases settled without a trial. Because of the difficulty in compiling data from the entire nation, the review included only cases when an appeals court or trial judge ruled whether a prosecutor had willfully or mistakenly stepped over legal or ethical boundaries.

The study found that only two prosecutors were disbarred for misconduct over the 30-year period. State bar associations disciplined 44 prosecutors, including one from Lane County, for ethical violations and misconduct during the same time, the study found.

The center, a nonprofit government watchdog, investigates and reports the workings of government, but doesn't advocate for specific reforms, spokeswoman Ann Pincus said.

Some records more accessible

Researchers compiled computerized court rulings, news accounts, state bar disciplinary records and tips from defendants, lawyers and judges to find as many misconduct cases as possible.

Because some states' records were more accessible and more detailed, the study's data can't be used to compare one jurisdiction to another, said Neil Gordon, a lawyer who worked on the study.

Appeals courts reversed verdicts or sentences in about 20 percent of misconduct cases. In the remainder, courts ruled there was no error or the alleged misconduct was "harmless."

The survey identified seven Lane County cases since 1970 that claimed prosecutorial error in an appeal. The same prosecutor handled four of the cases - Brian Barnes, who worked as an assistant district attorney from 1975 until 1990 and now has a private law practice in Eugene.

Barnes said prosecutorial error ranges from fabricating evidence to making minor mistakes in a trial. He said none of his cases involved an intentional egregious violation of a defendant's rights.

"In none of these four cases did the trial or appellate court make a finding of 'prosecutorial misconduct,' even though in one case ... the conviction was reversed," Barnes said.

Lane County District Attorney Doug Harcleroad said the center's study turned up "an infinitely small number of cases in Oregon" involving errors by prosecutors in light of the number of cases tried in three decades.

He defended Barnes as "an excellent trial lawyer" who sometimes "pushed the envelope." Harcleroad said the cases involving Barnes illustrate the everyday give-and-take in courtrooms, as lawyers aggressively advocate their positions and judges referee the process. Similar questions and remarks are made, objected to and ruled upon routinely, he said.

"Mistakes happen in the criminal justice system, as much as we would like them not to happen," he said. "That does not mean Barnes was malicious or intentionally doing something he couldn't do."

Harcleroad noted no Lane County prosecutor has been disciplined by the state bar for unethical conduct during his 18 years as district attorney.

Additionally, prosecutors are required to take annual continuing legal education courses in ethics. Discussions about how to ethically handle difficult legal issues are a daily exercise in his office, Harcleroad said. Everyone understands the stakes are high, he said. "We work on it every day," he said.

Lawyers at heart of issue

When local prosecutors make mistakes, it generally happens unintentionally in the heat of trial, said Bob Homan, a lawyer for the Public Defender Services of Lane County for more than 20 years.

"I'm not saying it's a regular occurrence," Homan said. "It isn't rampant. I don't think it's a big problem. It's a little overzealousness once in a while."

Homan noted defense lawyers have the same ethical obligations and are required to complete the same annual education requirements as prosecutors.

Eugene defense lawyer Dan Koenig, a former prosecutor who ran unsuccessfully against Harcleroad in the 2000 election, said the misconduct study is part of the growing concerns raised by the number of cases where DNA evidence is proving imprisoned people were innocent in spite of jury verdicts.

"How is it the system we all believe in is wrong so many times," he said.

Elected district attorneys set the standards for prosecution and set the tone for law enforcement, Koenig said. No community is immune from prosecutorial abuse. Ultimately, the quality of the justice system is a local issue, he said.

"That's a good thing. We have to be on guard. I'm not sure statewide or national standards are the answer," Koenig said. "In the DA's office, the tone is set by the leadership and what is tolerated."

At the heart of the issue is what is in the hearts of the lawyers, said Koenig, who has 30 years of legal experience. Lawyers are trained to advocate for one side or the other, aggressively and ethically. When a lawyer adopts the attitude that his side is right and the other side is evil, it dehumanizes the people involved and tempts the lawyer to cheat to win. Constitutional rights get trampled in the process, he said.

"I'm disappointed in lawyers who say they could only be a prosecutor or they could only be a defense lawyer," Koenig said. "Winning is not the point. The point is upholding the system. We've paid a big price for our freedom and we need to preserve that for both sides."

When it's all on the line in a trial, a good lawyer - on either side of a case - may overstep the rules in the heat of the moment, said Terry Gough, a defense lawyer in Eugene with almost 25 years of experience.

"I'm not advocating for attorneys to go out there and break the rules," Gough said. "You have to have a high intensity and do everything that is legal. Sometimes it's difficult not to go too far. You don't deliberately think about it."

Report lacks some insights

Overall, Gough said he gets a fair fight from Lane County's prosecutors.

"They're pretty fair and square," he said. "Doug Harcleroad is an outstanding DA. He did tolerate some misconduct by one of his attorneys. Overall, I'd give that office high marks, even the ones I'm not fond of."

Even with the far-reaching scope of the study, it still cannot answer the troubling question of how rampant prosecutorial misconduct really is, said Daniel Dotson, a former defense lawyer and spokesman for the National Association of Criminal Defense Lawyers.

He noted that the study relied principally on appeals court records, rulings by trial judges and state bar disciplinary actions. Missing are any insights on prosecutors' handling of the 95 percent of criminal cases that are settled before trial or those that are tried and never appealed, he said.

The cases cited in the study represent those in which prosecutors were caught red-handed - most likely just a fraction of all instances of prosecutorial misconduct, he said.

"It's not that rare," Dotson said.

MISCONDUCT STUDY

The Center for Public Integrity reviewed 11,452 appeals court rulings spanning three decades in 2,341 jurisdictions across the United States. It found appeals courts reversed convictions, overturned sentences or dismissed charges in 2,012 cases because of error or misconduct by the prosecutor.

In Oregon, the center found 44 cases where error or misconduct was an issue in an appeal. Eight of those cases were reversed because of a prosecutor's actions in a trial.

In Lane County, the center found seven cases with errors or misconduct by prosecutors. Trial verdicts were thrown out in two of those cases due to the prosecutor's error or misconduct.

The center found a number of cases with prosecutorial error or misconduct in 14 Oregon counties: Multnomah, 14 cases; Lane, 7; Marion, 6; Clackamas, 4; Coos, 3; Washington, 2; one case each in Benton, Klamath, Hood River, Umatilla, Columbia, Jackson, Wasco and Douglas.

- Center for Public Integrity

COMMON MISCONDUCT

In its study of prosecutorial misconduct, the Center for Public Integrity lists the common ways prosecutors violate fundamental fairness and constitutional standards. Complete results are available on the center's Web site, www.publicintegrity.org.

Failing to turn over all relevant evidence to the defense lawyer.

Having improper contact with witnesses, defendants, judges or jurors.

Making improper statements during hearings and trials.

Prosecuting cases with insufficient evidence.

Threatening defendants, defense lawyers or witnesses.

Using improper, false or misleading evidence.

Displaying a lack of diligence in analyzing evidence.

Making improper public statements about a pending case.

- Center for Public Integrity