ACLU studies mistakes by prosecutors’ offices

Photo Courtesy of Union County Prosecutor’s Office
Prosecutors across the state made 53 harmful errors during trials over a five-year period, according to a recent ACLU report. Four of those mistakes were made by the Union County Prosecutor’s Office.

Prosecutors across the state made 53 harmful errors during trials throughout the state over a five-year period, according to a report just released by the American Civil Liberties Union of New Jersey. Four of those mistakes were made by the Union County Prosecutors Office.

The report, “Trial and Error: A Comprehensive Study of Prosecutorial Conduct in New Jersey,” focused on cases prosecuted between January 2005 and the end of May 2011 where allegations of error were brought up on appeal.

The 113-page report is the first of its kind in the state to put 570 cases under the microscope and uncovered 229 instances where errors were committed at trial. This included 53 guilty verdicts that were harmful to defendants, four of which occurred in Union County.

In nine of those cases the court did not determine whether the error was harmful, but did determine there was error, while 167 were judged “harmless.” Seventeen cases were reversed without determining if there was prosecutorial error, 267 cases were found to have no error. Error was found in another 57 cases, but it was “harmless beyond a reasonable doubt,” and negligible.

Union County, according to the ACLU report, had  12.7 percent total errors over the five year period, or 7.5 “harmful errors,” when it came to criminal trials.

The ACLU report uncovered that while these instances of prosecutor misconduct were rare, those assistant prosecutors with multiple violations never faced discipline by an ethics board or the state attorney general’s office.

Accountability was severely lacking, the report noted, with assistant prosecutors facing only informal consequences, such as suspension, transfer or dismissal. None were slapped with ethical sanctions, even in the case of the most “egregious errors.”

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Interestingly, although some courts may have referred these prosecutors to the attorney general or local ethics boards, the report points out that a search of every disciplinary report from Jan. 1, 2001 through Sept. 30, 2011, revealed no instances of any prosecutor being disciplined for in-court behavior.

Furthermore, not one of the 343 prosecutors identified in the report were subjected to discipline, “in stark contrast” to discipline handed out against other categories of attorneys for the same courtroom infractions.

The report found 72 percent of errors committed by assistant prosecutors took place during closing arguments of a trial, followed by 13 percent during witness examination and 7 percent during opening statements. The level of experience of an assistant prosecutor, however, was not a factor.

Alex Shalom, an attorney and the ACLU’s counsel, and co-author of the report along with Rutger’s Law School professor George Thomas, warned that while there was a lesson to be learned on a statewide level, the message in general was not as bad as it sounded. Especially for the Union County Prosecutor’s Office.

“The overwhelming majority of prosecutors do a great job in the state, especially in Union County, but there are not enough good systems in place to ensure that this happens throughout the state,” Shalom said Oct. 4 in an interview with LocalSource.

Actually, he said, prosecutorial error “is rare,” and “that is equally true forUnionCounty.”

“Union County does a very good job,” he added.

In the report, Shalom noted in the introduction “the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.”

To that end, he said, a prosecutor’s duty is two-fold, to refrain  from improper methods that result in a wrongful conviction and to ensure legitimate means bring about a just conviction.

“As the United States Supreme Court put it in 1935,” Shalom said in the report, “while a prosecutor may strike hard blows, he is not at liberty to strike foul ones.”

The report indicated that while most prosecutors discharge their exceptional responsibilities with appropriate respect and remarkable skill, in some cases the “innocent are wrongly convicted.”

Shalom said courts reverse convictions when the conduct was so egregious it deprived defendants of a fair trial. Such reversal, he added, addressed potential harm to defendants but do little to restore public trust.

The report, Shalom said, was to specifically shed light on whether a prosecutor learns from his mistake and avoid similar conduct in the future. Some believe that most do not, especially in Union County.

The Union County numbers, according to one local attorney who has a private practice in the county, were of considerable concern to him.

“I think the numbers are astounding in this report simply because when you compare our numbers to Bergen County, which has almost twice the population we do, the percentage is high,” he said.

Bergen County, which has a population of 905,116, compared to Union county, which has 536,499 population, did have a lower percentage of prosecutorial errors, or 7.4 percent compared to Union County, which had 12.7 percent.

Essex County, population 783,969, had the highest number of convictions and the highest percentage of total convictions  at 16.8 percent, but they also had the highest number of prosecutorial errors in the state at 16.2 percent. Alarming was the number of harmful errors, which topped the chart at 24.5 percent. This number, according to the ACLU report, was alarming, considering the next highest number was 7.4 percent in the same category.

The report singled out three Essex county prosecutors, highlighting their “egregious errors, which upon occasion were repetitive.”

Although most prosecutors throughout the state, the report noted, committed one error during the study period, 10 committed errors in more than one case. Eight prosecutors, including one specific Bergen County prosecutor, Assistant Prosecutor David Calviello, were found to have committed errors in three or more cases.

Noteworthy, though, was the fact that in 70 percent of the cases investigated by the ACLU using the Open Public Records Act, the error occurred during prosecutor’s closing statements.

Attorneys contacted by LocalSource last week felt the percentages in the ACLU report did not accurately reflect the low number of prosecutorial errors actually taking place. Union County Prosecutor Theodore Romankow agreed.

“We have the second highest number of criminal trials to completion, and the fifth largest prosecutor’s department in the state,” he explained, noting, for example, that during the six year period examined by the ACLU,  there were 350 adult jury trials completed in the county, along with 358 juvenile trials, or more than 700 cases.

“Considering there were only 4 errors found and two of those were court errors, that is less than one-half of one percent,” Romankow added.

Between January 2005 and May 2011, 47 case decisions were reversed because of mistakes by the court, Romankow said. These included instructional errors, procedural errors, ineffective counsel or evidentiary issues.

“That’s not to blame the judges,” the prosecutor said, pointing out that “because the law is interpretive, that leaves it open to mistakes.”

Shalom had similar comments regarding the issue, admitting “prosecutorial error is pretty rare.”

“The question is, what do you do after a mistake is made,” he said, asking “do you learn from it?”

The ACLU is recommending the state keep a centralized database to track prosecutor errors so it is easier to identify patterns among prosecutors, while providing increased training, supervision and discipline to decrease the error rate.

Romankow agreed completely with this, explaining that he has been proactive in this area.

“We have 24 attorneys that are criminally certified,” he said, adding that this is the highest number in the state for prosecutor’s offices.

“No one comes this close,” Romankow added, pointing out that not even the state attorney general’s office has that high of a number of criminally certified assistant prosecutors.

Romankow also mentioned that in order to maintain this number and keep the percentage of prosecutorial errors down, he sponsors continuing legal education classes.

The ACLU report, however, noted this is the exception throughout the state, rather than the rule when it comes to other counties.

“With a few notable exceptions, New Jersey’ prosecutors’ offices only rarely have policies mandating training, supervision or discipline to prevent prosecutorial error,” the report indicated, suggesting extra time be spent training assistant prosecutors or create an informal system to penalize and reward prosecutors.

One thing is certain, Shalom said, some counties succeed more than others in minimizing the incidence of prosecutorial error and Union County happens to be one of them.

The cost of prosecutorial error along with police misconduct, the report indicated, actually contributed to the wrongful conviction of at least 46 people in the United States who were later exonerated.

But, even when prosecutorial error does not result in the conviction of an innocent person, society in general, along with crime victims in particular, still pay “deeply troubling costs.”

Financially, the reversal of a conviction triggers the potential for exceptionally costly retrials, the ACLU report said, adding this toll includes emotional harm and a “cost” in terms of justice.

Shalom said the financial costs are the easiest to calculate because trials are expensive. Taxpayers fund the prosecution, the judge, jury, court staff, security and often even the defense attorney’s fees. These costs explain the rarity of criminal trials.

For example, between July 2009 and June 2010, 54,339 indictments were returned statewide, 37,522 were resolved by way of a guilty plea, 379 by acquittal and 561 by conviction after trial.

“In other words, only 1.7 percent of indictments resulted in trials and indicted defendants were 39.9 times as likely to plead guilty than go to trial,” Shalom said.

The emotional toll is not as easy to quantify, the report noted. The unpredictable nature and high stakes of jury verdicts often drains victims and their families emotionally.

“Despite their testimony, they have no assurance that the alleged perpetrator will be convicted,” the report noted. And, the sense of relief a victim may feel after a jury has returned a guilty verdict quickly unravels if that conviction is reversed, the authors of the report said.

Initially on the defensive of how the county handles criminal trials, Romankow also had praise for the ACLU report.

“I think it’s a good report and I commend the work that went into it,” the prosecutor said.