Massachusetts prosecutors have violated defendants’ rights to a fair trial, without facing rebuke, even as wrongfully convicted victims of tainted prosecutions have spent years in prison before being freed.
That’s according to figures uncovered by The New England Center for Investigative Reporting and WGBH.
The state’s Supreme Judicial Court and Appeals Court have reversed at least 120 criminal convictions since 1985 in part or entirely because of the prosecuting attorney’s misconduct described in the judges’ rationale for the overturned verdicts.
At his sentencing in 1984 on three counts of rape a 33-year old welder named Ulysses Charles insisted in his heavy Trinidadian accent that the court had the wrong man. I would die, he tells us now, to have pleaded guilty to something I didn’t do.
“I would die. I am not the one. I don’t do that stuff.”
And in fact Ulysses Charles didn’t. But to get at the truth the prosecutor would have had to disclose exculpatory evidence during the Charles trial. But that prosecutor failed to point out that one victim said her assailant was circumcised. Ulysses Charles isn’t. And a federal judge, Nancy Gertner (now retired), who reviewed the case, said the prosecutor also mislead the court about a witness’s account of Ulysses Charles’s distinctive way of speaking.
“When I speak, I hear, I don’t know I’ve been here 45 years, OK, but people still tell me I have an accent. Alright, alright, now why in the world didn’t they (the victims) tell this to the police?”
These were some of the vital details missing from the Ulysses Charles trial. He was found guilty of rape and robbery and spent 19 years and six months in prison before being exonerated by DNA evidence.
Ulysses Charles was awarded two settlements totaling nearly 4 million dollars for wrongful conviction.
Prosecutors in Massachusetts and elsewhere almost never pay a personal price for negligence and worse. Former Superior Court Judge Isaac Borenstein says more needs to be done.
“Even in cases where there are sanctions, they tend to be very light compared to what they would typically do to a defense attorney.”
The prosecutor in the Ulysses Charles case, former Suffolk Assistant District Attorney Charles Campo, has gone on to an illustrious private practice –working for one of the area’s most important law firms. In an email, Campo told us that he prosecuted the case “fairly” and “did not misstate evidence”. We know about Campo’s role in this case because Ulysses Charles sued campo and the City of Boston for wrongful conviction. But the public rarely learns the name of prosecutors who err or out and out lie. Patty DeJuneas, an appellate attorney in Boston says that’s not by accident.
“There’s no data base. Prosecutors names are not used in the opinions even when they’re found to have engaged in serious or severe misconduct. It’s a mystery. So unless you happen to know another lawyer who’s had a case where that prosecutor engaged in misconduct, you’re just not going to know about that person’s history.”
There have been only two public reprimands of prosecutors since 1974 and in that 42 years NECIR and WGBH found zero cases where a prosecutor was disbarred as a result of professional misconduct. And in only two cases out of more than 1,000 were these prosecutorial transgressions even publicly acknowledged.
WGBH and NECIR Investigates: Investigates: Prosecutorial Misconduct, Apr. 6, 2016, 7-9pm, WGBH Studios, One Guest Street, Brighton, MA 02135
The NECIR and WGBH found that numerous prosecutors, whose behavior resulted in a reversal of convictions by appellate courts went on to lucrative private practices, district attorney postings and judgeships.
Suffolk County DA Dan Conley inherited several cases cited for prosecutorial and police errors, and in 2004 set up a task force to deal with the issue. It was the year Shawn Drumgold sued Boston for wrongful conviction. Drumgold spent nearly 16 years in prison on a murder conviction that former DA Newman Flanagan won mainly on the basis of eye-witness testimony. Conley determined that the trial was legally flawed.
"Shawn Drumgold’s case I agreed to that he should get a new trial not because he was actually innocent, because we couldn't say one way or another. What we could say was that he did not get a fair trial because some evidence was withheld from his trial.”
Defense attorney Rosemarie Scapicchio represented Drumgold in a successful 5-million-dollar settlement with Boston. She also represents another Sean; Sean Ellis, convicted in 1995 of murdering a police detective. Ellis served 21 years before he was granted a new trial last year by superior court Judge Carol Ball. In her 70-page opinion Ball cited police corruption and the failure of police and prosecutors to disclose key information and “to investigate numerous other parties with reason to kill” the detective. The two investigating officers had been implicated in a series of robberies of drug dealers and undocumented immigrants for over a decade. Scapicchio says that information, contained in a police anti-corruption file, was never mentioned by police or prosecutors.
“There were documents that weren’t turned over, investigations that weren’t turned over. Allegations that the officers investigating the case had their own unlawful conduct and communications, he didn’t get a fair trial. And that’s the bottom line.”
Legal experts say that even with all the cases involving prosecutorial misconduct that we know about, there’re likely many more because most cases don’t go to trial. Ninety percent of defendants plead out.
Badly prosecuted cases cost taxpayers tens of millions of dollars in settlements and retrials. But critics say the issue of greatest concern to the public is when innocent people are convicted because of prosecutorial errors and actual criminals remain at large. And Suffolk DA Dan Conley recognizes that both outcomes are tragic but ultimately he says prosecutors are human beings and human beings make mistakes.
“There will be a few bad apples,” says Conley. “But I will tell you these men and women are some of the most honorable men and women that I've ever met and they have no desire to put innocent people in jail. So it's really a caricature of the prosecutor that we’re under this enormous pressure to solve cases.”
Now 66-year-old, Ulysses Charles says he often sits alone in his house on a hill in Roxbury and relives his 19 years in prison.
“It is constant torture. Constant torture.”
Torture he says because while his life was interrupted, the man who prosecuted the case went on with his.
“Don’t forget Campo was a young guy. Late 20’s and he was trying to make a name for himself. And he didn’t care how he did it. This is not about justice man. It’s a crap game. Who can win. That’s what it’s all about. Who can win.
Ulysses Charles says we all lose when prosecutorial misconduct is tolerated, and he wants the whole world to know.