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