A two-year investigation by NPR’s Station Investigations Team, Columbia Journalism Investigations, and local NPR member stations in Ohio revealed a disturbing pattern of prosecutorial misconduct in the state, with 450 claims identified in criminal cases from 2018 to 2021[1]. Prosecutorial misconduct refers to the violation of laws meant to guarantee a fair trial and protect a defendant’s constitutional rights, including due process protections, which may result in the overturning of a conviction[1].
The investigation analyzed hundreds of Ohio appellate decisions, finding that approximately 10% of the trials included an allegation of prosecutorial misconduct, with 25% of these allegations resulting in a ruling of improper conduct by a judge[2]. However, 80% of these improper conduct rulings were deemed harmless, not affecting the case outcome[2]. The investigation identified 109 prosecutors responsible for the improper conduct in 100 cases, suggesting a systemic problem with prosecutorial misconduct in Ohio[1][3]. Examples of prosecutorial misconduct include withholding exculpatory evidence, failing to disclose expert witnesses, making inappropriate trial statements, or not ensuring other elements of the justice system meet their obligations to provide information related to the prosecution[1]. This article will delve into the scale of the issue in Cuyahoga County, high-profile cases of misconduct, responses from the legal community, victims’ stories, and efforts towards reform and accountability.
Understanding Prosecutorial Misconduct
Prosecutorial misconduct refers to the violation of defendants’ rights by prosecutors, which can result in a criminal conviction being overturned[5]. Prosecutors are expected to be trustworthy and reliable agents of the court, upholding the law and ensuring defendants’ rights are protected[5]. Examples of prosecutorial misconduct include:
Personal vouching for the truth of certain witnesses
Brady violations
Asking improper questions during cross-examination
Misstating facts deliberately in front of the jury[5]
Prosecutorial misconduct can impact the constitutional right to a fair trial[6]. It can be asserted as a basis for reversal, dismissing an indictment, and in limited circumstances, invoking double jeopardy[6]. Civil lawsuits based on prosecutorial misconduct are brought under 42 USC § 1983[6].
A claim for prosecutorial misconduct generally requires a showing of:
Misconduct
Prejudice[6]
The misconduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process”[6]. Seminal cases and authority on prosecutorial misconduct include Miller-Fel v. Cockrell, Darden v. Wainwright, and U.S. Const. amend. V[6].
Forms of Prosecutorial Misconduct
Description
Discovery violations
Failing to disclose evidence favorable to the defense
Improper contact
Inappropriate communication with witnesses or judges
Unsupported prosecution
Prosecuting cases not supported by probable cause
Improper evidence
Using inadmissible or prejudicial evidence
Improper public statements
Making inappropriate comments about a pending criminal matter
Disciplinary actions against prosecutors for misconduct can include private or public reprimands, censure, suspension, or disbarment[7]. The burden of proof is on the defendant to show that the prosecutor willfully engaged in misconduct and that it prejudiced the defendant[8].
Even without intentional misconduct, a judge may dismiss the indictment or declare a mistrial if the error rendered the proceeding fundamentally unfair[8]. Instances of prosecutorial misconduct include the Broadcom securities fraud case and the KPMG tax-shelter case[8].
Distinguishing Misconduct from Error
The American Bar Association (ABA) recognizes a distinction between prosecutorial misconduct and error[9]. The Office of Professional Responsibility (OPR) for the U.S. Department of Justice has created a framework for dealing with its own attorneys that can be employed to delineate between prosecutorial misconduct and error[9].
Prosecutors have a responsibility to know all evidence in the state’s possession, including evidence held by the police, and to turn over anything they consider favorable to the defense[4]. In Cuyahoga County, the prosecutor’s office does the bare minimum, requiring assistant county prosecutors to turn over certain evidence only when requested[4].
Defendants face a high bar to prove that a prosecutor wrongfully withheld evidence, requiring them to uncover previously undisclosed evidence after trial and show it would have changed the guilty verdict[4]. When Brady violations are found to have merit, rarely are prosecutors disciplined[4].
The misconduct falls under the constitutional standard established 60 years ago by the U.S. Supreme Court case, “Brady v. Maryland”[10]. The harmless error doctrine, which originated in the late 1800s, has been expanded beyond its original intent and is now used to deprive some defendants of fundamental due-process protections[11].
The Scale of the Issue in Cuyahoga County
An analysis of hundreds of Ohio appellate decisions from 2018 to 2021 found that about 10% of the trials included an allegation of prosecutorial misconduct[2]. Of those claims, 25% ended in a ruling of improper conduct by a judge[2]. However, 80% of the improper conduct rulings were determined to be harmless, meaning the court believed the conduct did not affect the outcome of the case[2].
The Columbia Journalism Investigations (CJI), in partnership with Ideastream Public Media and The Ohio Newsroom, analyzed Ohio appellate cases alleging prosecutorial misconduct, focusing on Brady violations[4]. The analysis revealed a pattern of Brady violations in Cuyahoga County, with more allegations and violations than any other Ohio county[4].
There are rare but significant instances where evidence was withheld from defendants in Cuyahoga County, leading to their wrongful imprisonment[2]. These cases highlight the severe consequences of prosecutorial misconduct and the importance of ensuring a fair trial for all defendants.
Key Findings in Cuyahoga County
Statistics
Appeals with misconduct allegations (2018-2021)
Nearly 450 (10%)
Claims resulting in improper conduct ruling
25%
Improper conduct rulings deemed harmless
80%
The Ohio Prosecuting Attorney’s Association (OPAA) responded to the investigation by requesting the public release of the database used for the analysis[2]. This request highlights the need for transparency and accountability in the criminal justice system.
To further discuss the investigation and its implications, the “Sound of Ideas” show on Ideastream Public Media will feature two reporters, a legal expert, and two assistant prosecuting attorneys from the Cuyahoga County Prosecutor’s Office[2]. This dialogue is crucial in addressing the issue of prosecutorial misconduct and finding solutions to prevent future occurrences.
Despite the severity of the issue, Cuyahoga County Prosecutor Michael O’Malley refused to be interviewed for the story[4]. This lack of cooperation raises concerns about the willingness of those in power to address and rectify instances of prosecutorial misconduct.
High-Profile Cases of Misconduct
An investigation by NPR, Columbia Journalism Investigations, and local partners found that around 100 prosecutors in Ohio violated legal standards in criminal trials[3]. The investigation identified 13 prosecutors with multiple instances of improper conduct, with most cases involving failures to disclose evidence and inappropriate comments during closing arguments[3].
One high-profile case involves Judge Daniel Gaul, who was admitted to the Ohio bar in 1981 and has served as a judge on the Cuyahoga County Common Pleas Court since 1991[12]. In 2010, Gaul was suspended from practicing law for six months due to making unnecessary and prejudicial remarks against a defendant and misusing the Amber Alert system[12]. In April 2022, disciplinary counsel charged Gaul with eight counts of judicial misconduct, involving seven criminal matters and one civil-stalking-protection-order case[12]. The misconduct categories include:
Coercing pleas
Aggressive questioning of a criminal defendant
Demeaning comments to a criminal defendant and other persons in the courtroom
Abusing the prestige of judicial office
Refusing to grant release from confinement and disregarding appellate-court orders
Abusing contempt power[12]
Based on the parties’ stipulations and evidence, the panel found Gaul committed all 31 of the charged rule violations[12]. As a result, Gaul is suspended from practicing law for one year, with no portion stayed, and immediately suspended from judicial office without pay for the duration of the suspension[12].
Another case involves Ennis R. Patterson, who filed complaints against the Prosecutors of Cuyahoga County, Ohio, alleging prosecutorial misconduct and violation of his constitutional rights[13]. Patterson’s complaints specifically identified Cuyahoga County prosecutors Ronni Ducoff, Ashley Kilbane, and Anthony Miranda[13]. However, the court granted the Prosecutors’ motion to dismiss, stating that Patterson failed to state a claim upon which relief can be granted, and the case was dismissed entirely[13].
The investigation by NPR’s Station Investigations Team, Columbia Journalism Investigations, and Ohio Newsroom analyzed thousands of pages of appellate decisions from 2018 to 2021, identifying approximately 450 claims of prosecutorial misconduct in Ohio criminal cases[1]. Types of misdeeds uncovered include:
Misdeed
Description
Brady violation
Failure to disclose exculpatory evidence
Improper arguments
Inappropriate comments during closing arguments or opening remarks
Batson violation
Discriminatory jury selection practices
Discovery violation
Failure to provide required evidence to the defense
Leading questions
Asking suggestive questions to a state’s witness
False evidence
Presenting false or misleading evidence
Plea deal errors
Mistakes or misconduct related to plea bargains
Appellate judges found some kind of improper conduct in 104 total criminal cases, with consequences ranging from no error, harmless error, reversible error, error but reverses on other grounds, to did not reach anything[1]. The investigation identified 109 prosecutors responsible for the improper conduct in 100 cases[1].
Over a four-year period, there were roughly 4,700 criminal trials statewide, with nearly 450 appeals (about 10%) including an allegation of prosecutorial misconduct[14]. Of the scores of criminal trials from 2018 to 2021 in which appeals courts found that prosecutors acted improperly, most were for failing to disclose evidence and making inappropriate comments in closing arguments[14].
Former prosecutor Bennett Gershman called the pattern of prosecutors who repeatedly act improperly in cases a “microcosm” of the criminal justice system in states across the country[14]. Similar issues have been found in other states, such as Tennessee, Missouri, and New York, with prosecutors being rebuked or reprimanded for misconduct[14]. Experts say the lack of accountability for prosecutors enables them to make repeated mistakes with near impunity[14].
The Ohio Supreme Court has not sanctioned any prosecutors involved in repeated improper-conduct cases[14]. All of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges[14]. The investigation is the first-ever attempt to pull back the curtain of anonymity shielding Ohio prosecutors from public scrutiny when appeals courts affirm claims of improper conduct, showing a systemic failure to hold prosecutors accountable[14].
Several specific cases of prosecutorial misconduct were highlighted in the investigation:
Ernie Haynes was charged with abduction after trying to gain custody of his grandchildren[3]. His case was prosecuted by Thomas Matuszak, one of the 13 prosecutors who had more than one instance of improper conduct[3]. Matuszak is now working in a similar position in nearby Ottawa County, where he has racked up another two rulings of improper conduct, raising his total to seven[3].
The Ohio Supreme Court has ruled that prosecutors violated a criminal defendant’s right to a fair trial by seating the alleged victim at the prosecutor’s table[15].
Michael Buehner served 12 years of an 18-to-life prison sentence for murder before finding evidence that prosecutors withheld from him and his attorneys[10].
From 2017 to 2021, four defendants in Ohio had criminal trials reversed after alleging that county prosecutors had withheld evidence that could have favored their defense[10].
Response from the Legal Community
The investigation into prosecutorial misconduct in Ohio has prompted various responses from the legal community:
Ohio Office of Disciplinary Counsel’s Commitment
The Ohio Office of Disciplinary Counsel has committed to creating an “ethics boot camp” for county prosecutors statewide in response to the investigation[16].
Critics argue that measures like mandatory training on ethical issues do not sufficiently address systemic issues in preventing prosecutorial misconduct[17].
Lack of Sanctions and Accountability
None of the prosecutors involved in repeated improper-conduct cases were sanctioned by the Ohio Supreme Court[3].
All of the prosecutors found to have repeatedly acted improperly continue to practice as attorneys, with some moving into more powerful positions[3].
Experts suggest that the number of known misconduct cases is vastly undercounted due to the small percentage of criminal cases that reach trial and the challenges defendants face in challenging convictions[3].
Ohio Prosecuting Attorney’s Association (OPAA) Response
The OPAA responded to the investigation by requesting the public release of the database used for the analysis[2].
The OPAA stated that the low number of improper conduct cases does not indicate a systemic problem[2][21].
Legal experts argue that prosecutorial misconduct is a widespread issue and that there is a lack of oversight and incentives for prosecutors to disclose favorable evidence[21].
Judicial Conduct and Reporting Misconduct
Rule 2.15 of the Ohio Code of Judicial Conduct requires judges to report to the appropriate authority if they have knowledge of another judge or lawyer’s misconduct that raises questions about their honesty, trustworthiness, or fitness[18].
This rule is an obligation for judges to report misconduct, ensuring public respect for the justice system[18].
Model Rule 2.15(A) and (B) of the ABA Model Code of Judicial Conduct require judges to report misconduct when they possess knowledge that raises a “substantial question” about a lawyer or judge’s honesty, trustworthiness, or fitness[18].
Ohio’s Rule 2.15 conforms to this requirement by requiring reporting when the judge possesses knowledge that raises a “question”[18].
Harmless Error Doctrine and Its Criticisms
The harmless error doctrine allows appellate judges to disregard certain trial mistakes if they believe they did not affect the trial’s outcome[11].
The doctrine has been criticized for its subjectivity and uneven application among courts[11].
Critics argue that the harmless error doctrine can deprive defendants of fundamental due-process protections[11].
The burden of proof in harmless error cases has shifted to defendants, which is problematic[11].
Legal Community Response
Key Points
Ohio Office of Disciplinary Counsel
Committed to creating an “ethics boot camp” for county prosecutors
Lack of Sanctions and Accountability
Prosecutors involved in repeated misconduct not sanctioned by Ohio Supreme Court
Ohio Prosecuting Attorney’s Association (OPAA)
Requested public release of the database; stated low number of cases does not indicate systemic problem
Judicial Conduct and Reporting Misconduct
Rule 2.15 requires judges to report misconduct; ensures public respect for the justice system
Harmless Error Doctrine and Its Criticisms
Allows judges to disregard trial mistakes; criticized for subjectivity and uneven application
The legal community’s response to the investigation into prosecutorial misconduct in Ohio has been varied, with some calling for increased training and accountability, while others argue that the issue is not systemic. The harmless error doctrine has also come under scrutiny for its potential to undermine defendants’ rights[11].
Victims of Misconduct and Their Stories
Despite these findings, none of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court[3]. The investigation revealed that most improper conduct cases involved:
Failing to disclose evidence
Making inappropriate comments in closing arguments[3]
Key Statistics
Number
Criminal trials statewide (2018-2021)
Roughly 4,700
Appeals with prosecutorial misconduct allegations
Nearly 450
The investigation also shed light on rare but significant instances of evidence withholding that have led to wrongful imprisonment for years and even decades[21]. These cases highlight the devastating impact of prosecutorial misconduct on the lives of defendants and their families.
Victims’ Stories
Ernie Haynes: Haynes was charged with abduction after trying to gain custody of his grandchildren[3]. His case was prosecuted by Thomas Matuszak, one of the 13 prosecutors identified as having more than one instance of improper conduct[3]. Matuszak has since moved to a similar position in nearby Ottawa County, where he has accumulated another two rulings of improper conduct, bringing his total to seven[3].
Michael Buehner: Buehner served 12 years of an 18-to-life prison sentence for murder before discovering evidence that prosecutors had withheld from him and his attorneys[10]. This case exemplifies the severe consequences of prosecutorial misconduct and the importance of ensuring a fair trial for all defendants.
These stories illustrate the human cost of prosecutorial misconduct and the urgent need for reform and accountability in the criminal justice system. Victims of misconduct often face years of wrongful imprisonment, separated from their families and communities, while prosecutors responsible for the misconduct face little to no consequences for their actions[3].
Disciplinary Process and Its Shortcomings
The Ohio Supreme Court’s disciplinary process for prosecutors is often slow and ineffective, with prosecutors rarely disciplined for misconduct[17]. This lack of accountability enables prosecutors to make repeated mistakes with near impunity, highlighting the need for reform in the disciplinary system.
Efforts Towards Wrongful Conviction Prevention
Ohio Supreme Court Chief Justice Maureen O’Connor has convened a task force to address wrongful convictions and improve the process for reviewing innocence claims[22]. The task force is considering approaches taken by other states, including:
Conviction Integrity Units (CIUs)
Innocence Commissions
Postconviction Review Processes[22]
The Ohio Innocence Project’s Director Mark Godsey supports conviction integrity units but emphasizes the need for political insulation and independence[22]. However, smaller prosecutor offices in less populated areas may face challenges in establishing a CIU due to limited funding and staff[22].
Cummings encouraged a broad mandate for reviewing possible wrongful convictions, as the wider the funnel, the better[22].
Bail Reform Efforts
Bail reform is a topic of interest in Ohio, with calls for reform supported by examples of individuals suffering severe consequences due to an inability to afford bail[23]. The challenge of bail reform is finding the responsible balance between the fundamental principles of equal justice and the presumption of innocence, and the fundamental responsibility of government to keep the public safe[23].
Key Points in Bail Reform
Description
Risk Assessment Tools
Should inform, not dictate, judicial decisions about the conditions of pretrial release
Funding for Pretrial Services
Substantial funding for local pretrial services is necessary for fair and effective bail reform
Balancing Principles
Equal justice, presumption of innocence, and public safety must be balanced in bail reform efforts
Without substantial funding for local pretrial services, fair and effective bail reform that ensures the defendant’s appearance at trial and protects the safety of the community cannot be realized[23].
Conclusion
The investigation into prosecutorial misconduct in Ohio has uncovered a disturbing pattern of violations that undermine defendants’ constitutional rights and the integrity of the criminal justice system. Despite the identification of numerous instances of improper conduct, the lack of accountability and disciplinary action against offending prosecutors remains a significant concern. This systemic issue not only jeopardizes the fairness of trials but also erodes public trust in the legal system.
As efforts towards reform and accountability gain momentum, it is crucial for the legal community, policymakers, and the public to work together to address the root causes of prosecutorial misconduct. By implementing effective oversight mechanisms, improving training and education for prosecutors, and promoting a culture of integrity and transparency, Ohio can take significant steps towards ensuring justice for all. Only through a concerted effort to uphold the highest standards of legal ethics can the state restore confidence in its criminal justice system and protect the rights of every individual.
FAQs
What are the potential remedies if a prosecutor engages in misconduct? If a prosecutor is found to have engaged in misconduct, there are several corrective measures that may be taken. These include the possibility of the judge dismissing the charges against the defendant, instructing the jury to disregard certain evidence or statements, or other appropriate judicial actions to address the misconduct.
Can a case be dismissed due to prosecutorial misconduct? Yes, a case can indeed be dismissed if prosecutorial misconduct occurs. This can happen if a prosecutor makes false or misleading statements in court, such as presenting testimony they know to be perjured or making assertions that are not supported by evidence with the intent to deceive the jury.
How does prosecutorial misconduct differ from malicious prosecution? Prosecutorial misconduct encompasses a range of unethical or illegal actions by a prosecutor during the course of a criminal case. In contrast, malicious prosecution specifically refers to the situation where a prosecutor initiates a legal action without a legitimate basis, solely to harass or subdue a defendant.
What are the consequences for a prosecutor who acts unethically? When a prosecutor acts unethically, their conduct is subject to investigation by the State Bar’s Office of Chief Trial Counsel and may be prosecuted in the independent State Bar Court. The State Bar is responsible for handling complaints against attorneys, which are reviewed by investigators within its Office of Chief Trial Counsel.
References
[1] –https://www.npr.org/2023/12/15/1219340245/ohio-court-prosecutors-misconduct-investigation-explainer [2] –https://www.ideastream.org/show/sound-of-ideas/2024-01-09/investigative-series-looks-at-prosecutorial-misconduct-in-ohio [3] –https://www.npr.org/2023/12/14/1216111092/ohio-court-prosecutor-misconduct-due-process-rights [4] –https://www.statenews.org/news/2023-12-19/improper-conduct-how-undisclosed-evidence-can-put-ohioans-behind-bars [5] –https://www.spolinlaw.com/blog/2022/11/21/what-is-prosecutorial-misconduct/ [6] –https://content.next.westlaw.com/Browse/Home/CivilRightsLegalMaterialsNews/UnwarrantedCriminalProsecutionProsecutorialMisconduct?transitionType=Default&contextData=(sc.Default) [7] –https://publicintegrity.org/politics/state-politics/harmful-error/misconduct-and-punishment/ [8] –https://www.mololamken.com/knowledge-What-Exactly-Is-Prosecutorial-Misconduct [9] –https://ndaa.org/wp-content/uploads/misconduct.pdf [10] –https://www.wosu.org/2023-12-19/improper-conduct-how-undisclosed-evidence-can-put-ohioans-behind-bars [11] –https://www.ideastream.org/2023-12-20/improper-conduct-how-the-harmless-error-doctrine-lets-prosecutors-mistakes-slide [12] –https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2023/2023-Ohio-4751.pdf [13] –https://casetext.com/case/patterson-v-prosecutors-of-cuyahoga-cnty [14] –https://www.statenews.org/2023-12-14/ohio-prosecutors-broke-rules-to-win-convictions-and-got-away-with-it [15] –https://www.mahoningmatters.com/news/local/investigations/article256579366.html [16] –https://fij.org/in-follow-up-on-ohio-prosecutorial-misconduct-investigation-grantee-examines-questionable-convictions/ [17] –https://www.beaconjournal.com/story/opinion/columns/2024/01/07/why-prosecutors-judges-do-not-deserve-unqualified-immunity/72088611007/ [18] –https://casetext.com/rule/ohio-court-rules/ohio-code-of-judicial-conduct/canon-2-a-judge-shall-perform-the-duties-of-judicial-office-impartially-competently-and-diligently/rule-215-responding-to-judicial-and-lawyer-misconduct [19] –https://www.ohiobar.org/public-resources/about-attorneys/lawyer-ethics–discipline/ [20] –https://moritzlaw.osu.edu/study/journals/osjcl-ohio-state-journal-criminal-law [21] –https://www.youtube.com/watch?v=98lCYcVzk-c [22] –https://www.courtnewsohio.gov/inDepth/2021/March/default.asp [23] –https://www.ohiobar.org/member-tools-benefits/practice-resources/practice-library-search/practice-library/2020OL/balancing-bail-reform-a-prosecutorial-perspective/ [24] –https://www.statenews.org/tags/improper-conduct-investigations
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