Pros­e­cu­tors’ con­duct can tip the scales

Abuses Abuses send send in­no­cent in­no­cent to to prison, prison, let let the the guilty guilty go go free, free, leave leave many with with huge huge le­gal le­gal bills bills

USA TODAY US Edition - - FRONT PAGE - By Brad Heath and Kevin McCoy USA TO­DAY

OR­LANDO — The ju­rors who helped put Nino Lyons in jail for three years had ev­ery rea­son to think that he was a drug traf­ficker, and, un­til July, no rea­son to doubt that jus­tice had been done.

For­more than aweek in 2001, the ju­rors lis­tened to one wit­ness af­ter an­other, al­most all of them prison in­mates, de­scribe how Lyons had sold them pack­ages of co­caine. One said that Lyons, who ran cloth­ing shops and night­clubs around Or­lando, even tried to hire him to kill two drug sup­pli­ers.

But the fed­eral pros­e­cu­tors han­dling the case did not let the jury hear all the facts.

In­stead, the pros­e­cu­tors cov­ered up ev­i­dence that could have dis­cred­ited many of Lyons’ ac­cusers. They never re­vealed that a con­vict who claimed to have pur­chased hun­dreds of pounds of co­caine from Lyons strug­gled even to iden­tify his pho­to­graph. And they hid the fact that pros­e­cu­tors had promised to let oth­ers out of prison early in ex­change for their co­op­er­a­tion.

Fed­eral pros­e­cu­tors are sup­posed to seek jus­tice, not merely score con­vic­tions. But a USA TO­DAY in­ves­ti­ga­tion found that pros­e­cu­tors re­peat­edly have vi­o­lated that duty in court­rooms across the nation. The abuses have put in­no­cent peo­ple in prison, set guilty peo­ple free and cost tax­pay­ers mil­lions of dol­lars in le­gal fees and sanc­tions.

Judges have warned for decades that mis­con­duct by pros­e­cu­tors threat­ens the Con­sti­tu­tion’s prom­ise of a fair trial. Congress in 1997 en­acted a law aimed at end­ing such abuses.

Yet USA TO­DAY doc­u­mented 201 crim­i­nal cases in the years that fol­lowed in which judges de­ter­mined that Jus­tice Depart­ment pros­e­cu­tors— the nation’s most elite and pow­er­ful lawen­force­ment of­fi­cials— them­selves vi­o­lated laws or ethics rules.

In case af­ter case dur­ing that time, judges blasted pros­e­cu­tors for “fla­grant” or “out­ra­geous” mis­con­duct. They caught some pros­e­cu­tors hid­ing ev­i­dence, found oth­ers ly­ing to judges and ju­ries, and said oth­ers had bro­ken plea bar­gains.

Such abuses, in­ten­tional or not, doubt­less in­fect no more than a small frac­tion of the tens of thou­sands of crim­i­nal cases filed in the nation’s fed­eral courts each year. But the trans­gres­sions USA TO­DAY iden­ti­fied were so se­ri­ous that, in each case, judges threw out charges, over­turned con­vic­tions or re­buked pros­e­cu­tors for mis­con­duct. And each has the po­ten­tial to tar­nish the rep­u­ta­tion of the pros­e­cu­tors who do their jobs hon­or­ably.

In July, U.S. District Judge Gre­gory Presnell did more than over­turn Lyons’ con­vic­tion: He de­clared that Lyons was in­no­cent.

Pros­e­cu­tors are “the A+ stu­dents. They’re not used to los­ing.” “The scary part is it prob­a­bly does hap­pen ev­ery day, and no­body ever fig­ures it out.”

— Robert Berry, Nino Lyons’ at­tor­ney — Lau­rie Leven­son, Loy­ola Law School pro­fes­sor

Nei­ther the Jus­tice Depart­ment nor the lead pros­e­cu­tor in the Lyons case, Bruce Hin­shel­wood, would ex­plain the events that cost Lyons his home, his busi­nesses and nearly three years of free­dom. The depart­ment in­ves­ti­gated Hin­shel­wood but re­fused to say whether hewas pun­ished; records ob­tained by USA TO­DAY show that the agency reg­u­lat­ing Florida lawyers or­dered him to at­tend a one-day ethics work­shop, sched­uled for Fri­day. Asked about Presnell’s rul­ing ex­on­er­at­ing Lyons, Hin­shel­wood said only, “It is of no con­cern to me.”

The cir­cum­stances of Lyons’ con­vic­tion did trou­ble Presnell, who over­sawhis trial nine years ago. Presnell sav­aged the Jus­tice Depart­ment in a writ­ten or­der for “a con­certed cam­paign of pros­e­cu­to­rial abuse” by attorneys who, he said, cov­ered up ev­i­dence and let felons lie to the jury.

Records from the Jus­tice Depart­ment’s in­ter­nal ethic­swatch­dogs showthe agency has in­ves­ti­gated a grow­ing num­ber of com­plaints by judges about mis­con­duct they ob­served. In 2001, the depart­ment in­ves­ti­gated 42 such com­plaints; last year, 61.

The depart­ment will not re­veal how many of those pros­e­cu­tors were pun­ished be­cause, it said, do­ing so would vi­o­late their pri­vacy rights. USA TO­DAY, draw­ing on state bar records, iden­ti­fied only one fed­eral pros­e­cu­tor who was barred even tem­po­rar­ily from prac­tic­ing law for mis­con­duct dur­ing the past 12 years.

Even high-pro­file cases have been af­fected. Last year, a judge in Washington, D.C. — say­ing the depart­ment could not be trusted to in­ves­ti­gate its own pros­e­cu­tors — launched his own probe of the attorneys who han­dled the cor­rup­tion trial of for­mer Alaska sen­a­tor Ted Stevens. Af­ter a jury found Stevens guilty, the depart­ment ad­mit­ted that pros­e­cu­tors had hid­den ev­i­dence, then dropped the charges. (Stevens died in an Au­gust plane crash.)

Stevens’ lawyers ques­tion howmis­con­duct could have tainted such a closely watched case — and what that might mean for rou­tine prose­cu­tions. “It’s a fright­en­ing thought and calls into ques­tion the gen­er­ally ac­cepted be­lief that our sys­te­mof jus­ti­ceper­forms at a high level andyields just re­sults,” said Bren­dan Sul­li­van, Stevens’ at­tor­ney.

Pat­tern of ‘glar­ing mis­con­duct’

Un­like lo­cal pros­e­cu­tors, who of­ten toil daily in crowded courts to un­tan­gle rou­tine bur­glar­ies and homi­cides, Jus­tice Depart­ment attorneys han­dle many of the nation’smost com­plex and con­se­quen­tial crimes.

With help from le­gal ex­perts and for­mer pros­e­cu­tors, USA TO­DAY spent six months ex­am­in­ing fed­eral pros­e­cu­tors’ work, re­view­ing le­gal data­bases, depart­ment records and tens of thou­sands of pages of court fil­ings. Al­though the true ex­tent of mis­con­duct by pros­e­cu­tors will likely never be known, the as­sess­ment is the­most com­plete yet of the scope and im­pact of those vi­o­la­tions.

USA TO­DAY found a pat­tern of “se­ri­ous, glar­ing mis­con­duct,” said Pace Uni­ver­sity law pro­fes­sor Ben­nett Ger­sh­man, an ex­pert on mis­con­duct by pros­e­cu­tors. “It’s sys­temic now, and ... the sys­tem is not able to con­trol this type of be­hav­ior. There is no ac­count­abil­ity.”

He and Alexan­der Bunin, the chief fed­eral pub­lic de­fender in Al­bany, N.Y., called the news­pa­per’s find­ings “the tip of the ice­berg” be­cause many more cases are tainted by mis­con­duct than are found. In many cases, mis­con­duct is ex­posed only be­cause of vig­i­lant scru­tiny by de­fense attorneys and judges.

How­ever fre­quently it hap­pens, the con­se­quences go to the heart of the jus­tice sys­tem’s prom­ise of fair­ness:

-In­no­cent peo­ple are pun­ished. In Ari­zona, a woman spent eight years in prison for her con­vic­tion in a 2000 bank rob­bery be­cause the pros­e­cu­tion never told her that an­other woman — who matched her de­scrip­tion al­most ex­actly — had been charged with rob­bing­banks in the area. In­Wash­ing­ton, D.C., a court in 2005 threw out murder charges against twom­en­who­had spent two decades in prison for a murder they didn’t com­mit, in part be­cause pros­e­cu­tors hid ev­i­dence that two oth­ers could have com­mit­ted the crime.

They were among 47 cases USA TO­DAY doc­u­mented in which de­fen­dants were ei­ther ex­on­er­ated or set free af­ter the vi­o­la­tions sur­faced.

Among the con­se­quences ofmis­con­duct, wrong­ful con­vic­tions are the most se­ri­ous, said for­mer U.S. at­tor­ney gen­er­alDick Thorn­burgh. He said, “No civ­i­lized so­ci­ety should coun­te­nance such con­duct or sys­tems that failed to pre­vent it.”

Even peo­ple who never spent a day in jail faced ru­inous con­se­quences: lost ca­reers, lost sav­ings and lost rep­u­ta­tions. Last year, a fed­eral ap­peals court wiped out Illi­nois busi­ness­man Charles Farinella’s 2007 con­vic­tion for chang­ing “best when pur­chased by” dates on bot­tles of salad dress­ing he sold to dis­count stores. The judges ruled that what he’d donewasn’t il­le­gal and blasted lead pros­e­cu­tor Juliet Sorensen for vi­o­la­tions that robbed Farinella of a fair trial. Ex­on­er­a­tion came too late to sal­vage his busi­ness or to help the 20 or so em­ploy­ees he had laid off.

“It’s the United States govern­ment against one per­son,” Farinella said in his first pub­lic com­ment on the case. “They beat you down be­cause they are so pow­er­ful. They have tril­lions of dol­lars be­hind them. Even some­one who’s in­no­cent doesn’t have much of a chance.”

-G-ilty peo­ple go free or face less pun­ish­ment. In Puerto Rico, a fed­eral court blocked pros­e­cu­tors from seek­ing the death penalty for a fa­tal rob­bery be­cause they failed to turn over ev­i­dence; the de­fen­dant was sen­tenced to life in prison in­stead. In Cal­i­for­nia, a dou­ble agent ac­cused of shar­ing de­fense se­crets with China was sen­tenced to pro­ba­tion in­stead of prison be­cause pros­e­cu­tors re­fused to let her lawyer talk to her FBI han­dler, a key wit­ness. Dozens of other de­fen­dants — in­clud­ing drug deal­ers and bank rob­bers — left prison early be­cause their tri­als were tainted.

-Tax­pay­ers foot the bill. The Jus­tice Depart­ment has paid nearly $5.3mil­lion to re­im­burse the le­gal bills of de­fen­dants who were wrongly ac­cused. It has spent far­more to re­peat tri­als for peo­ple whose con­vic­tions were thrown out be­cause of mis­con­duct, a process that can take years, al­though the full price tag is im­pos­si­ble to tally.

In one Cal­i­for­nia case, for ex­am­ple, it took pros­e­cu­tors four years and three tri­als to con­vict a man of tax fraud. Then an ap­peals court set aside his con­vic­tion be­cause it said a pros­e­cu­tor “sat silently as his wit­ness lied.”

The vi­o­la­tions hap­pened in al­most ev­ery part of the nation, though USA TO­DAY found the most cases in fed­eral courts in SanDiego; Mas­sachusetts; Washington, D.C.; and Puerto Rico. That pat­tern means mis­con­duct is “not an iso­lated prob­lem,” said Lau­rie Leven­son, a Loy­ola Law School pro­fes­sor and for­mer fed­eral pros­e­cu­tor in Los An­ge­les.

Trial, jail and vin­di­ca­tion

The Amer­i­can le­gal sys­tem puts enor­mous faith in ju­ries: Give 12 men and women the facts, and they­will sep­a­rate the guilty fromthe in­no­cent.

The Con­sti­tu­tion, Congress and courts have set elab­o­rate rules to en­sure ju­rors get the facts and aren’t swayed by emo­tion or fear. Rules are par­tic­u­larly ex­act­ing for pros­e­cu­tors, as they act with govern­ment author­ity and their mis­takes can put peo­ple in prison.

One of those rules, es­tab­lished by the Supreme Court nearly 50 years ago in a case called Brady v.

Mary­land, is that pros­e­cu­tors must tell de­fen­dants about ev­i­dence that could help prove their in­no­cence. With­hold­ing that ev­i­dence is “rep­re­hen­si­ble,” the court later said.

Nonethe­less, USA TO­DAY iden­ti­fied 86 cases in which judges found that pros­e­cu­tors had failed to turn over ev­i­dence to de­fen­dants. That’s what hap­pened to Nino Lyons.

Lyons, now 50, grew up in the pub­lic hous­ing projects of Co­coa, Fla., out­side Or­lando; his fa­ther spent time in prison, and for sev­eral years, his mother raised him alone. Even so, Lyons thrived: He grad­u­ated from col­lege and worked briefly at the nearby Kennedy Space Cen­ter. In the 1990s, he opened cloth­ing stores and night­clubs in Co­coa and Or­lando. Hewas vice pres­i­dent of the lo­cal NAACP chap­ter.

How Lyons also be­came a drug sus­pect is un­clear. But five days be­fore Christ­mas in 2000, po­lice stormed his Rock­ledge house, search­ing for an il­le­gal ma­chine gun. They did not find a ma­chine gun or any drugs. What they did find was sus­pi­cious: an as­sort­ment of le­gal guns and $185,000 in cash, some of it counterfei­t. Lyons said he was sav­ing for a down pay­ment on an Or­lando night­club.

Within a year, pros­e­cu­tors put to­gether a pro­ces­sion of more than two dozen in­mates will­ing to tes­tify that Lyons was a ma­jor drug traf­ficker. Ju­rors con­victed Lyons of al­most ev­ery charge, in­clud­ing car­jack­ing, sell­ing counterfei­t cloth­ing and a drug con­spir­acy that could have put himin prison for life.

“With all the ev­i­dence they had brought forth in this trial, I didn’t have any choice but to vote guilty on him,” said one ju­ror, Harold Newsome.

The ev­i­dence pros­e­cu­tors hid from Newsome and the other ju­rors did not fully come to light un­til 2004, dur­ing Lyons’ third year in jail. It sur­faced only be­cause of one line in a govern­ment sen­tenc­ing re­port that hinted at undis­closed ev­i­dence. When it emerged, the Jus­tice Depart­ment agreed to drop the drug charge against Lyons, and Presnell, the judge who over saw the trial, threw out the rest.

It­was a dras­tic step and meant Lyons could never be re­tried. Presnell wrote that he had no other op­tion: “The Govern­ment’s pro­tracted course ofmis­con­duct,” he wrote, “caused ex­tra­or­di­nary prej­u­dice to Lyons, ex­hib­ited dis­re­gard of the Govern­ment’s du­ties, and demon­strated con­tempt for this court.”

By then, Lyons had spent 1,003 days in a county jail north of Or­lando. He was never sen­tenced, but re­mained locked up while courts sorted through the prob­lems in his case. He sawhis son and daugh­ter, then in mid­dle school, only through the thick glass win­dows of the vis­it­ing room, and spoke to them only via tele­phone.

His busi­nesses folded while he was in jail. His wife, Deb­bie, was de­moted fromher job as prin­ci­pal of an ele­men­tary school, a move the school said was un­re­lated to the case. She sold the cou­ple’s house and took a night job tu­tor­ing the chil­dren of mi­grant farm­work­ers to pay the bills.

“It was bad for me, but I didn’t re­al­ize un­til I came home how bad it had been for my wife and my kids, peo­ple that re­ally loved me,” Lyons said.

Records showthe Jus­tice Depart­ment even­tu­ally paid $150,000 of Lyons’ le­gal bills in a set­tle­ment that was never made pub­lic. It ad­mit­ted in a court fil­ing that pros­e­cu­tors made “se­ri­ous er­rors” in their han­dling of the case. The at­tor­ney who re­placed Hin­shel­wood as the case dragged on, Lee Bent­ley, per­son­ally apol­o­gized to Lyons.

For Deb­bie Lyons, 51, it wasn’t enough. “When they tar­geted him, they tar­get­edme. They tar­geted my kids,” she said. Pros­e­cu­tors “don’t have the cour­tesy to say, ‘We’re wrong; our agents were wrong; we pur­sued this case wrong. We know we lied; we knowwe with­held ev­i­dence.’ ”

Lyons said he’s “thank­ful to God” that Presnell fi­nally de­clared him in­no­cent. But al­most nine years af­ter he was first found guilty, ex­on­er­a­tion hasn’t re­paired the dam­age to his rep­u­ta­tion.

In the six years since hewas re­leased from­jail, he hasn’t been able to find a reg­u­lar job or even land an in­ter­view. Now he works part time for a church pro­gram in Or­lando that finds men­tors for kids whose par­ents are in jail. The grant that pays for the pro­gramwill run out at the end of the­month.

“Even if the pres­i­dent comes out to­mor­row and says this man is 1,000% in­no­cent, you’re go­ing to have some­body some­where say, ‘I’m not sure about that. I don’t think the govern­ment would have did that if hewas in­no­cent,’ ” Lyons said.

‘ The scary part’

Sniff­ing out mis­con­duct can be a mat­ter of serendip­ity— or luck, as Lyons’ attorneys dis­cov­ered.

The ev­i­dence that even­tu­ally set Lyons free came to light only be­cause of one sen­tence buried in a 40page draft of a pro­ba­tion of­fi­cer’s sen­tenc­ing re­port. Those drafts are dense and at times ig­nored, but this one of­fered a tan­ta­liz­ing clue: an ac­count by one of Lyons’ ac­cusers, a fed­eral in­mate, that dif­fered fromhis tes­ti­mony dur­ing the trial.

That stuck out to Robert Berry, one of Lyons’ attorneys, who won­dered what else he hadn’t been told. His dig­ging led to hun­dreds of pages of other ev­i­dence pros­e­cu­tors had never dis­closed.

“If it­wasn’t for that one sen­tence, hewould be in prison right now, prob­a­bly for the rest of his life,” Berry said. “The scary part is it prob­a­bly does hap­pen ev­ery day and no­body ever fig­ures it out.”

One rea­son vi­o­la­tions may go un­de­tected is that only a small frac­tion of crim­i­nal cases ever get the scru­tiny of a trial, the pro­cess­most likely to iden­tify mis­con­duct. Tri­als play a “very im­por­tant” role, said for­mer deputy at­tor­ney gen­eral David Og­den, be­cause they force judges and attorneys to re­view a case in far­more ex­act­ing de­tail.

The num­ber of peo­ple charged with crimes in fed­eral district courts has al­most dou­bled over the past 15 years. Yet the num­ber­whose cases ac­tu­ally go to trial has fallen al­most 30%, to about 3,500 last year, USA TO­DAY found. Last year, just four de­fen­dants out of 100 went to trial; the rest struck plea bar­gains that re­solved their cases quickly, with far less scru­tiny from judges.

“We re­ally should be more concerned about the cases we don’t know about,” said Leven­son, the Loy­ola pro­fes­sor. “Many of the types of mis­con­duct you iden­ti­fied could hap­pen ev­ery day, and we’d never knowabout it if de­fen­dants plead out.”

De­lib­er­ate vi­o­la­tions

In a jus­tice sys­tem that prose­cutes more than 60,000 peo­ple a year, mis­takes are in­evitable. But the vi­o­la­tions USA TO­DAY doc­u­mented go be­yond ev­ery­day mis­steps. In the worst cases, say judges, for­mer pros­e­cu­tors and oth­ers, they hap­pen be­cause pros­e­cu­tors de­lib­er­ately cut cor­ners towin.

“There are rogue pros­e­cu­tors, of­ten­mo­ti­vated by per­sonal am­bi­tion or par­ti­san rea­sons,” said Thorn­burgh, who was at­tor­ney gen­eral un­der Pres­i­dents Rea­gan and Ge­orge H.W. Bush. Such peo­ple are un-

com­mon, though, he added: “Most for­mer fed­eral pros­e­cu­tors, like my­self, are re­sent­ful of ac­tions that bring dis­credit on the of­fice.”

Judges have seen those abuses, too. “Some­times, you get in­ex­pe­ri­enced and un­scrupu­lous as­sis­tant U.S. attorneys who don’t care about the rules,” said U.W. Cle­mon, the for­mer chief judge in north­ern Alabama’s fed­eral courts.

How of­ten pros­e­cu­tors de­lib­er­ately vi­o­late the rules is im­pos­si­ble to know. The Jus­tice Depart­ment’s in­ter­nal ethics watchdog, the Of­fice of Pro­fes­sional Re­spon­si­bil­ity, in­sists it hap­pens rarely. It re­ported that it com­pleted more than 750 in­ves­ti­ga­tions over the past decade, and found in­ten­tional vi­o­la­tions in just 68. The depart­ment would not iden­tify the cases it con­cluded were marred by in­ten­tional vi­o­la­tions, and re­moves from its pub­lic re­ports any de­tails that could be used to iden­tify the pros­e­cu­tors in­volved.

State records, how­ever, of­fer a glimpse into what can go wrong. Three years ago, two fed­eral pros­e­cu­tors in Illi­nois, each with more than a decade of ex­pe­ri­ence, were or­dered to an­swer to the state At­tor­ney Reg­is­tra­tion and Dis­ci­plinary Com­mis­sion for prob­lems that al­most tor­pe­doed a drug case. The lawyers failed to turn over in­for­ma­tion to de­fense attorneys that could have dis­cred­ited a key wit­ness. That tac­tic, the U.S. Court of Ap­peals for the 7th Cir­cuit con­cluded, was “de­signed to de­lib­er­ately mislead the court and de­fense coun­sel.”

Both pros­e­cu­tors told au­thor­i­ties that they knew the rules, and both ad­mit­ted that they didn’t turn over the ev­i­dence, ac­cord­ing to a tran­script of the hear­ing. One, BradleyMur­phy, said he was count­ing on thewit­ness to re­veal the dam­ag­ing in­for­ma­tion him­self dur­ing his tes­ti­mony. The other, John Camp­bell, apol­o­gized. “It’s em­bar­rass­ing, to say the least,” he told the com­mis­sion.

State records show that the Jus­tice Depart­ment sus­pended both pros­e­cu­tors for a day. Both also were cen­sured by the Illi­nois Supreme Court. They re­main fed­eral pros­e­cu­tors. At­tor­ney Gen­eral Eric Holder de­clined to be in­ter­viewed; ear­lier this year, he told judges that of­fi­cials “must take se­ri­ously each and ev­ery lapse, no mat­ter the cause.” The head of the depart­ment’s crim­i­nal di­vi­sion, Lanny Breuer, said, “Ob­vi­ously, even one ex­am­ple of real mis­con­duct is too many. ... If you’ve en­gaged in mis­con­duct, the re­sponse of the depart­ment has to be swift and strong.”

In prac­tice, how­ever, the re­sponse — by the Jus­tice Depart­ment and the state of­fi­cial­swho over­see lawyers — has fre­quently been nei­ther. Depart­ment records show that its in­ter­nal in­ves­ti­ga­tions of­ten take more than a year to com­plete, and usu­ally find that pros­e­cu­tors, at worst, made a mis­take, even when judges who presided over the tri­als ruled that therewas se­ri­ous mis­con­duct.

In one rare ex­cep­tion, the depart­ment in 2007 pros­e­cuted one of its for­mer attorneys, Richard Con­vertino, for ob­struct­ing jus­tice in his han­dling of a Detroit ter­ror­ism case. He was ac­quit­ted, and he un­suc­cess­fully ac­cused the attorneys who pros­e­cuted him of mis­con­duct. The depart­ment called Con­vertino “un­man­age­able” in one court fil­ing, but still kept its in­ter­nal re­view of the case se­cret.

In the one case in which USA TO­DAY found that state of­fi­cials sus­pended a fed­eral pros­e­cu­tor from prac­tic­ing law, the pun­ish­ment lasted only a year. In that case, Florida’s Supreme Court found that Karen Sch­mid Cox had let a wit­ness lie about her name dur­ing a trial, mak­ing it im­pos­si­ble for de­fense attorneys to check the wit­ness’s back­ground. If they had, they would have found that the wit­ness had been pre­vi­ously ac­cused of ly­ing to a judge and fil­ing a false po­lice re­port.

Pres­sures on pros­e­cu­tors

Leven­son said.

“Pros­e­cu­tors think they’re do­ing the Lord’s work, and that they wear the white hat. When I was a pros­e­cu­tor, I thought ev­ery­thing I did was right,” said Jack­Wolfe, a for­mer fed­eral pros­e­cu­tor in Texas and nowa de­fense lawyer. “So even if you got out of line, you could tell your­self that you didn’t do it on pur­pose, or that it­was for the greater good.”

Be­yond that, most fed­eral pros­e­cu­tors do their jobs with lit­tle day-to-day su­per­vi­sion, said Michael Seigel, the sec­ond-in-com­mand of the U.S. at­tor­ney’s of­fice in Tampa from1995 to 1999.

And, un­til last year, pros­e­cu­tors were not re­quired to get reg­u­lar train­ing in ethics such as their con­sti­tu­tional duty to share ev­i­dence with de­fen­dants. That train­ing is im­por­tant: Many of the le­gal rules pros­e­cu­tors must fol­loware com­plex, and not ev­ery­one agrees on the bound­ary be­tween ag­gres­sive lawyer­ing and mis­con­duct.

Last year, Og­den, Holder’s sec­ond-in-com­mand, headed a re­view of prob­lems with pros­e­cu­tors’ fail­ure to turn over ev­i­dence to de­fen­dants, the is­sue that ul­ti­mately un­der­mined the Lyons case. It con­cluded that most vi­o­la­tion­swere “not the prod­uct of peo­ple who in­ten­tion­ally set about to cheat but . . . more of a lack of train­ing and a lack of re­sources,” said Og­den, who left the depart­ment this year. That re­view prompted a new re­quire­ment that pros­e­cu­tors get two hours of an­nual train­ing in their duty to share ev­i­dence.

“Pros­e­cu­tors think they’re do­ing the Lord’s work, and that they­wear the white hat. When I was a pros­e­cu­tor, I thought ev­ery­thing I did­was right.”

In some cases, Jus­tice Depart­ment records and court doc­u­ments sug­gest that pros­e­cu­tors broke the rules in­ad­ver­tently, of­ten be­cause they were in­ex­pe­ri­enced or un­su­per­vised.

For­mer pros­e­cu­tors from of­fices across the nation in­sist that the Jus­tice Depart­ment never put pres­sure on them to cut cor­ners — “there wasn’t any per­va­sive at­ti­tude of win-at-any-cost,” said Rick Jan­cha, a for­mer pros­e­cu­tor in Or­lando.

But there are other pres­sures. For one thing, pros­e­cu­tors are tak­ing on more cases than ever. In the mid-1990s, the of­fices had one at­tor­ney for ev­ery 14 de­fen­dants; last year, they had one at­tor­ney for ev­ery 28. Even though most of those cases end in plea bar­gains, the in­crease can be tax­ing, be­cause pros­e­cu­tors of­ten are re­spon­si­ble not just for con­duct­ing tri­als but over­see­ing in­ves­ti­ga­tions.

And pros­e­cu­tors put pres­sure on them­selves. “They’re the A+ stu­dents. They’re not used to los­ing,”

— At­tor­ney Jack­Wolfe, for­mer fed­eral pros­e­cu­tor

‘Real sloppy and lazy’

Be­fore Bruce Hin­shel­wood be­came a fed­eral pros­e­cu­tor, he tried murder cases and those in­volv­ing other high-pro­file crimes as a state at­tor­ney. He headed the Jus­tice Depart­ment’s Jack­sonville of­fice, and­was briefly sec­ond-in-com­mand of the mid­dle district sur­round­ing Tampa. Later, he tried drug cases in Or­lando. In all that time, there is no in­di­ca­tion Hin­shel­wood was faulted for mis­con­duct. The Lyons case changed that.

Hin­shel­wood’s for­mer boss, Paul Perez, be­came U.S. at­tor­ney in Tampa in 2002, shortly af­ter Lyons’ trial ended. When the case against Lyons fell apart, it­was his job tofig­ure­outwhy.

Perez said in an in­ter­viewthat he per­son­ally never doubted that Lyons was guilty. He said the prob­lems came down to inat­ten­tion: Hin­shel­wood was “an ex­pe­ri­enced but very lazy pros­e­cu­tor,” but he didn’t break the rules on pur­pose. He was, Perez said, “real sloppy and lazy.”

Judge Presnell drew harsher con­clu­sions. In a 2004 or­der, he said the Jus­tice Depart­ment’s fail­ures in the case could be ex­plained, “at best, by its agents’ sloppy in­ves­tiga­tive work or, at worst, by their know­ing fail­ure tomeet con­sti­tu­tional du­ties.” He later faulted pros­e­cu­tors not just for fail­ing to turn over ev­i­dence but for “brazenly” de­fy­ing court or­ders and pre­sent­ing wit­nesses who were “al­lowed, if not en­cour­aged, to lie un­der oath.”

Records fromthe Florida Bar, which reg­u­lates the state’s lawyers, show that the Jus­tice Depart­ment in­ves­ti­gated Hin­shel­wood’s han­dling of the Lyons case, a fact the depart­ment re­fused to con­firm for fear of in­vad­ing his pri­vacy. The depart­ment com­pleted its re­port in 2007 and re­ferred its find­ings to the bar in 2009, a step Jus­tice Depart­ment poli­cies say it takes when it find­smis­con­duct.

De­spite Presnell’s re­buke and its own in­ves­ti­ga­tion, there is no ev­i­dence that the Jus­tice Depart­ment ever pun­ished Hin­shel­wood. He con­tin­ued pros­e­cut­ing cases un­til he re­tired in Fe­bru­ary 2008 to open his own law­prac­tice in Or­lando.

The Florida Bar in­ves­ti­gated Hin­shel­wood last year — seven years af­ter Presnell ac­cused him of mis­con­duct by name in a court or­der — but con­cluded that too much time had passed to take ac­tion for what hap­pened at the trial. It let Hin­shel­wood re­solve the com­plaint by pay­ing $1,111.80 in costs and at­tend­ing Fri­day’s ethics work­shop. “That’s the ex­tent of it?” Lyons said. The bar opened a sec­ond in­ves­ti­ga­tion of Hin­shel­wood in July af­ter Presnell de­clared Lyons in­no­cent, an un­com­mon step that of­fi­cials would not ex­plain pub­licly.

To Lyons, noth­ing the bar can dowould be strong enough. Hin­shel­wood “should suf­fer or go to jail,” Lyons said. “The jus­tice sys­tem­not only didn’t work ini­tially inmy case, it’s still not work­ing. Bruce Hin­shel­wood has his pen­sion. He still works ev­ery sin­gle day. His life is not mis­er­able. I’mnot say­ing­mine is, but it’s noth­ing like it­was be­fore.”

Florida To­day

Freed af­ter nearly three years: Nino Lyons, clutch­ing a Bi­ble, is greeted by relatives as he is re­leased fromFlorid­a’s Semi­nole County jail in­May 2004.

By Rhyne Pig­gott, USA TO­DAY

By Dan MacMedan, USA TO­DAY

Il­lus­tra­tion by SamWard, USA TO­DAY

By Rhyne Pig­gott, USA TO­DAY

Case tossed: Nino Lyons, at the U.S. courthouse in Or­lando, lost his home, busi­nesses and rep­u­ta­tion.

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