by Edward Humes
Nationwide, during the months surrounding Pat Dunn’s legal travails alone, at least seventeen death sentences (seven in 1992, ten in 1993) were reversed because the men and women convicted were innocent. These people were not just given new trials; they were simply set free. Several had come within days, and one within hours, of execution before last-minute stays rescued them from wrongful deaths. In addition, at least another three convicted murderers, who had been sentenced to life instead of death, also were freed in 1992 and 1993.54
Of those twenty capital cases, sixteen—80 percent—were overturned because of prosecutorial or law-enforcement misconduct. Most of these reversals owed to police and prosecutors’ failure to turn over evidence that would have showed defendants’ innocence: A high school principal in Pennsylvania was set free after seventeen years on death row because a prosecutor hid evidence that someone else might have killed the teacher and two children who were victims in the case. A man framed and convicted for murder in New York was released after two decades in prison, with the appeals court writing that the only explanation for the moral bankruptcy of the prosecutor in his case was that “The district attorney [failed] to train or supervise her employees as to such basic norms of human conduct as the duty not to lie or persecute the innocent.” John Henry Knapp of Phoenix, Arizona, was sentenced to death for the 1973 arson murder of his two children, and spent twenty years awaiting execution despite the prosecution having evidence that fingerprints on the gas can used to start the fire belonged to someone else—a fact never revealed to the defense until another prosecutorial agency took over the case. A Texan who came within two days of execution, Andrew Lee Mitchell, was freed after it was learned the sheriff’s department had covered up police reports stating that the victim was seen alive two hours after Mitchell was alleged to have committed murder. A woman in Mississippi, sentenced to death for killing her nine-month-old baby, was released from death row after two years because there was no actual evidence that she had done anything wrong—the police had responded to her baby’s tragic death, most likely from sudden infant death syndrome, by locking her up after she frantically brought the child to the hospital for treatment.
The conviction of innocents in the months surrounding Pat Dunn’s arrest and trial was not limited to murder cases.55 In September 1992, a massive cocaine-smuggling case against seven men disintegrated when it was revealed—after trial, convictions and sentencing had occurred—that the assistant U.S. attorney on the case had kept hidden a scathing Drug Enforcement Administration memo about the untrustworthiness of the star witness. The memo labeled this key witness a frequent liar who had falsely accused others in the past, yet was rewarded by the U.S. Customs Service with free cars, free run of government offices, phones and safe houses, and other forms of undisclosed payments. The cover-up, with its startling parallels to information about Jerry Lee Coble kept from Pat Dunn’s defense, led to the reversal of all seven convictions.
Meanwhile, in Chester County, Pennsylvania, prosecutors fought hard to prevent a man serving a forty-two-year prison sentence for rape from undergoing a DNA test. When the state supreme court finally ordered the test, Dale Brison was proved innocent and released. A few months later, a New York hospital employee convicted of raping a mental patient was also set free after DNA testing proved he had not committed the crime. In that case, prosecutors had disregarded the victim’s statements accusing others of the rape, and had not even tried to check out the hospital worker’s ironclad alibi.56
Around the same time, a former Disney movie actor, Jay Kerr, had drug conspiracy charges against him dismissed in federal court in Montana because of improper evidence and argument by prosecutors. And within a month of that, a federal prosecution in Chicago of sixty-five gang members accused of maintaining a huge drug-running organization—one that bought favors from judges and politicians and whose members were linked to numerous murders—was derailed by prosecutorial misconduct. Convictions were overturned, indictments dismissed and investigations abandoned when it was learned that as reward for their favorable testimony, key witnesses against the notorious El Rukn gang had received beer, money, narcotics and the opportunity to do drugs and have sex in prosecutors’ offices—lawbreaking that would have destroyed the witnesses’ credibility (not to mention that of prosecutors), and which therefore was covered up. (Many of the defendants were successfully retried and convicted in untainted proceedings.)
Not long afterward, the deportation of John Demjanjuk, accused of Nazi war crimes by the United States Justice Department’s Office of Special Investigations, was harshly criticized by the Court of Appeals for the Sixth Circuit, which found that prosecutors had “acted with reckless disregard for the truth” and “committed fraud on the court” because, even as it set about ruining the elderly Demjanjuk’s life, it had evidence in hand of his innocence. The Israeli Supreme Court, not known for its leniency toward accused Nazis, set Demjanjuk free because the United States had concealed evidence proving he was no war criminal at all.
One of the most stinging court decisions on prosecutorial misconduct in recent years involved not a capital crime, but a relatively minor case in which two people were convicted of selling $100,000 worth of heroin to an undercover officer. At trial, Assistant U.S. Attorney Jeffrey Sinek repeatedly told the jury that a third individual arrested but not on trial was unavailable to testify because he had claimed the right to remain silent. Sinek made this statement to rebut a central defense contention that the prosecution was keeping this witness under wraps because the individual in question could help exonerate the defendants. The prosecutor’s more innocuous explanation for the witness’s absence helped his case—but it wasn’t true. Federal prosecutors had cut a deal with that person and so knew that, as the Ninth Circuit Court of Appeals later put it, this individual “would sing like a nightingale” if called as a witness. The resulting testimony could well have benefited the defense, but the prosecutor and his superiors in the Los Angeles U.S. Attorney’s Office kept the information hidden throughout the trial and long after, reluctantly divulging it only when the Ninth Circuit justices forced them to reveal it during appeals arguments. A conservative justice appointed by Ronald Reagan, Alex Kozinski, then wrote a blistering opinion that summed up the temptations and difficulties of prosecutorial misconduct. In it, he noted that, alone among government officials, prosecutors operate with little public scrutiny or accountability in deciding who to prosecute and what evidence to share with defense attorneys—operating on an honor system entirely dependent on each prosecutor’s personal integrity—which is why, since the Supreme Court’s 1935 ruling in Berger vs. United States, it has been a bedrock principle that the prosecution’s duty “is not that it shall win a case, but that justice shall be done.”57
“What we find most troubling about this case is not [the prosecutor’s] initial transgression,” Justice Kozinski wrote, “but that he seemed to be totally unaware he’d done anything at all wrong and that there was no one in the United States Attorney’s Office to set him straight. . . . The overwhelming majority of prosecutors are decent, ethical, honorable lawyers who understand the awesome power they wield, and the responsibility that goes with it. But the temptation is always there: It’s the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.”58
Prosecutorial misconduct is handled more gingerly than any other transgression in the justice system (except for judicial misconduct, the most sacred subject of all). Prosecutors are rarely cited by name for misconduct in published court opinions—Justice Kozinski’s opinion in the heroin case being an unusual exception. Indeed, the response of the offending prosecutor’s supervisor in the Los Angeles U.S. Attorney’s Office was not to issue a reprimand, but to petition the court to remove the prosecutor’s name from the written opinion to spare him embarrassment.59 The appeals court eventually agreed to do so.
Appeals courts routinely omit the names of prosecutors accused
of misconduct, going so far as to “depublish” lower court opinions to avoid stigmatizing the government lawyers, a consideration never offered individuals charged with a crime—even ones later proved innocent. In one stunning case that occurred in early 1992, one Titus Lee Brown of South Central Los Angeles was released from prison for a murder and robbery conviction in which key evidence against him included jewelry and other items that he had supposedly stolen from the victim. Only the Los Angeles County deputy DA on the case knew—even as she argued otherwise to the jury—that those supposedly stolen items had actually been found by emergency-room workers on the murder victim’s body and had been returned to the victim’s family. It was a situation remarkably similar to the case against Pat Dunn, in which Deputy DA John Somers insisted that Sandy Dunn always wore expensive jewelry on her predawn walks, despite his own witnesses telling him the opposite. Such misstatements are routinely tolerated. In Titus Brown’s case, not only did the state appeals courts deny him a new trial, but the California Supreme Court ordered a lower court’s opinion discussing the misconduct “depublished.” And then, once again, the Ninth Circuit Court of Appeals had to step in to correct the errors of the California state courts.
“The prosecutor’s actions in this case are intolerable,” the federal justices wrote. “Possessed of knowledge that destroyed her theory of the case, the prosecutor had a duty not to mislead the jury. Instead, she kept the facts secret . . . and then presented testimony in such a way as to suggest the opposite of what she alone knew to be true. . . . Such conduct perverts the adversarial system and endangers its ability to produce just results.”60
Yet, even as Titus Brown got his new trial and the Los Angeles District Attorney’s Office got a black eye because one of its own lied to a jury to win a conviction, the individual prosecutor on the case was spared any public humiliation. The Ninth Circuit opinion, though brutal in its criticism, never mentioned her by name.
• • •
There is no agency that tracks prosecutorial misconduct, no outside scrutiny of prosecutors, no mechanism for policing them other than the prosecutors themselves and the chance discoveries of defense lawyers, judges and journalists—which is to say prosecutors are almost never reprimanded for their courtroom misconduct. However, a few measures that do exist suggest that prosecutorial transgressions are on the rise. In 1993, for instance, twenty Justice Department lawyers left their jobs while under investigation for charges of misconduct, a record unmatched since the birth of the nation. Overall, allegations of prosecutorial misconduct that year had climbed 78 percent from the previous year within the Justice Department, the only prosecuting agency in the country that disseminates such statistics for its lawyers. By 1995, that number had soared another 71 percent.
Meanwhile, a 1992 national study of four hundred people wrongfully convicted of death-penalty offenses since the 1940s found 15 to 20 percent of them had been set free because of unethical and illegal conduct by prosecutors. That translates to a total of sixty to eighty innocents sentenced to death because of false or hidden evidence or other government misbehavior over a half century.61
A congressional report published in 1993 listed forty-eight men released from death row between 1973 and 1993. All were later found to be innocent; many had been convicted as a result of prosecutorial misconduct.62
Nationally, the justice system’s reaction to these findings exactly mirrored the reaction in Kern County when its high-profile prosecutions crumbled one by one. The tendency was not to take a hard look at prosecutors and their accountability, or to question the many laws passed in the 1980s and early 1990s that, in an understandable desire to crack down on crime, had shifted power in the justice system from judges to prosecutors. Instead, the solution has been to make it harder for convicts to present new evidence of innocence and to appeal their cases. New federal laws and Supreme Court rulings have sharply limited the number of federal appeals allowed in criminal cases, and the Supreme Court also created a standard that requires near-absolute proof of innocence before a conviction could be overturned for “factual” reasons—not even the strongest of doubts are enough in the absence of “legal” and “procedural” errors in the case.63 At the same time, many states have imposed strict time limits on the presentation of new evidence. Texas, for example, which leads the nation in executions, set that limit at thirty days. After that period, a man convicted of murder could theoretically discover on day thirty-one a videotape of someone else committing the crime, and still be legally executed—he literally would have no avenue of appeal under Texas law. (This scenario is not fantasy—it was presented by Supreme Court Justice Anthony Kennedy during oral arguments in Herrera vs. Collins, a death-penalty case. Kennedy could not have been too concerned, though—he still voted to uphold a law that would allow just such an execution, deciding that it was a matter of states’ rights.)64 Opponents of such strict deadlines argued in vain that the time limits—intended to reduce frivolous appeals in criminal cases and to speed up executions—also give prosecutors an incentive to hide evidence. An unscrupulous prosecutor would know that he or she had to hang on for only a month after conviction before winning by default, no matter what new evidence—or evidence of misconduct—surfaced after that point.
Just such an argument was made in the case of a Virginia coal miner named Roger Keith Coleman, convicted of killing his sister-in-law and scheduled to be executed in May 1992. After his conviction and death sentence, Coleman and his lawyer learned that the police and prosecutors had covered up a host of facts useful to the defense: evidence of forced entry at the victim’s house (at trial, they had argued she had known the killer—Coleman—and let him into the house); knowledge that the knife allegedly used by Coleman didn’t fit the victim’s wounds; and information that a pair of scissors and a blood-soaked sheet had been found in a trash can outside the victim’s home by a neighbor. The blood evidence not only had been kept from the defense—it had not even undergone forensics tests. Finally Coleman’s team learned that the police hid a time card that they had obtained which would have corroborated Coleman’s alibi that he had been at work at the time of the murder. Meanwhile, the jailhouse informant who was the chief witness in the case, and who had gotten four separate prison sentences reduced to probation for his trouble, had recanted and maintained that Coleman had never confessed to him. On top of all this, new evidence had surfaced linking another man to the crime. That man had lived in the victim’s neighborhood, had been accused of raping other women in a similar manner, and had allegedly confessed to one of his rape victims that he had killed Coleman’s sister-in-law.
In short, while Coleman did not have a videotape of another man committing the murder, he had assembled a mountain of new evidence that seemed almost as strong, with clear and seemingly irrefutable evidence of prosecutorial misconduct to go with it. Before the Supreme Court, his lawyers argued that prosecutors should not be rewarded, and an innocent man punished, for such misdeeds simply because the prosecutors successfully covered up their conduct long enough to elude a deadline. But the Court not only refused to stop the execution, it wouldn’t even consider the new evidence. Coleman’s lawyers had blundered and missed a filing deadline of their own—by three days. If the State of Virginia wanted to stick by its deadlines, the federal government would not intercede, Justice Sandra Day O’Connor wrote for the majority.
“This is a case about federalism,” O’Connor reasoned. “It concerns the respect that federal courts owe the states.”
The State of Virginia appreciated the Supreme Court’s deference; prosecutors there used exactly the same sort of “technicality” that they normally accused defense lawyers of exploiting—a deadline missed by seventy-two hours—to deny a hearing to explore Coleman’s new evidence. And thus, at 11:00 P.M. on May 20, 1992, Roger Keith Coleman was put to death.65
In his dissent in Herrera vs. Collins, a subsequent, similar Texas death case, a disgusted Justice Harry Blackmun wrote, “The execution of a person
who can show that he is innocent comes perilously close to simple murder.”66 That opinion, however, was in the minority.
10
COMPARED TO THE EVIDENCE DISCOVERED—AND ignored—in Roger Coleman’s case, the new evidence unearthed by Laura Lawhon to justify a new trial for Pat Dunn was rather threadbare. Even Laura had to admit that. Try as she might, she just couldn’t find the ammunition she desperately sought and hoped for. She never did find out about the missing report from Detective Banducci or the new check forgery charges against Jerry Coble. She could not know of Kate Rosenlieb’s full role in the case. Only the district attorney’s office and its witnesses could provide that information, and they did not do so.
What Laura did find was this: Jennifer Dunn, Pat’s daughter, belatedly recalled that when she had helped gather up Sandy’s clothes to donate to charity many months after the murder, there had been several dozen nightgowns, some worn, some unused. To Laura, this suggested that Sandy did not always sleep in the nude, as Deputy DA Somers argued. It was a small point, but a point nevertheless.
Another piece of Laura’s case came from Pat’s mechanic, who had serviced the Dunns’ Chevy Blazer and changed its two front tires the day after Sandy disappeared. Somers had called this evidence of a cover-up, and, Laura knew from her post-trial interviews, the jurors had taken it very seriously. But the mechanic told Laura that it had been his idea, not Pat’s, to replace the front tires, which were badly worn and in danger of blowing out. Pat had been out searching for Sandy and gotten worried that the car was shaking so badly, he might not be able to keep looking. The mechanic also recounted to Laura that the oil seals on the wheels were leaking and needed replacement. When he checked them, he saw that the fluid behind them was clean. This would not be the case, the mechanic said, if Pat had recently driven on dirt roads. Thus, the service performed on the Blazer indicated that Pat could not have driven up into the mountains—over rugged dirt roads—to dispose of Sandy’s body the day before.