by Brooke Williams & Shawn Musgrave
Massachusetts prosecutors have violated defendants’ rights to a fair trial regularly and without punishment, even as wrongfully convicted victims of tainted prosecutions have spent years in prison before being freed, decades of court rulings show.
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.
The New England Center for Investigative Reporting reviewed more than 1,000 rulings in which defendants alleged prosecutorial misconduct. In addition to the 120 reversals, judges criticized the prosecution’s behavior in another 250 cases, but found the lapses not serious enough to affect the jury’s decision, and upheld the convictions.
At least 11 convicted defendants in the reviewed cases were ultimately exonerated. Added together, their time served for crimes they didn’t commit totaled more than 100 years. Others were convicted again or pleaded guilty when facing retrial, sometimes to lesser charges with sentences reduced.
Some prosecutors failed to turn over important evidence to defense attorneys or didn’t disclose information bearing negatively on witness credibility, judges said. Others misrepresented evidence in their closing statements to the court.
While the 120 reversals are only a small fraction of all convictions, they show the self-regulatory system meant to deal with lawyers’ ethical lapses is unusually protective of prosecutors. When courts throw out convictions citing prosecutorial misconduct, they rarely name wayward prosecutors or refer them for discipline.
NECIR found no case in Massachusetts where a prosecutor was disbarred for professional misconduct since 1974, when the state Board of Bar Overseers was created to hear complaints against attorneys. Only two public reprimands for professional misconduct were found in that 42-year span, and they came without fines or other punishment.
At least seven prosecutors whose behavior prompted courts to reverse convictions went on to higher posts. Some became judges and district attorneys.
“Prosecutors have more power than anyone, in many respects, over the lives of the average person,” said Daniel Medwed, professor at the Northeastern University School of Law. “But there is almost no accountability, no transparency, and the public isn’t paying attention – that is a very, very combustible concoction.”
Odyssey of Ulysses
Charles Campo, a former Suffolk County assistant district attorney, successfully prosecuted Ulysses Charles for the rape and robbery of three women in Boston in 1984. Campo’s own notes discovered more than a decade later showed one victim’s description of her attacker didn’t match Charles, Superior Court Justice Barbara Rouse found in a decision that resulted in Charles’ release from prison in 2001.
The victim said she believed her attacker was circumcised. Charles is not. Medical records showed another victim told a doctor in the hospital shortly after the rapes that her attacker had an American accent, according to a ruling by U.S. District Court Judge Nancy Gertner in a later civil case filed by Charles against the City of Boston. At trial, Campo had entered into a stipulation that the victim told the doctor the attacker spoke with an accent that was “non-American,” Gertner wrote. Charles has a strong Caribbean accent.
Rouse’s decision relied chiefly on new DNA evidence that excluded Charles as the rapist. But she also said Campo’s failure to disclose the victim’s circumcision description of the attacker was sufficient grounds in itself for a new trial. Prosecutors declined to re-try the case.
After serving nearly two decades of an 80-year sentence, Charles was exonerated. He later was awarded $3.75 million in settlements of lawsuits against the city and the Commonwealth.
No public reprimand of Campo could be found in the Board of Bar Overseers’ searchable records online. Asked about Campo, Constance Vecchione, the board’s bar counsel, said she can’t comment on matters outside public disciplinary cases.
Campo, who is now in private practice, said he “prosecuted this case fairly” and “did not misstate evidence or enter into a stipulation believing it to be false.” The wording of the stipulation “was agreed to by both sides and supported by the trial testimony,” and it was never disputed “that the assailant had a non-American accent,” he said.
Charles, 66, now lives in Roxbury. In an interview, he called the settlements small compensation for the time he lost in prison. He blamed Campo for the loss of his daughter, who killed herself while he was incarcerated.
“My daughter was never the same, she lost her f***ing mind because I was in prison, and committed suicide over this piece of garbage,” he said.
Wayward but Anonymous
When judges toss convictions or indictments due to misconduct, they almost always omit the errant prosecutor’s name, as they did in all but seven of the 120 reversal decisions. That makes it difficult to identify those with a history of misconduct.
Judges shield the identities because many have worked as prosecutors and they sympathize with their heavy workloads, and because they share a general cultural norm against snitching on colleagues, said Adam Gershowitz, a professor at William & Mary Law School in Virginia, who has argued for naming.
Going back at least three decades, a handful of judges in Massachusetts have called their colleagues to task for not naming names.
In a 1983 decision that reversed a first-degree murder conviction because the prosecutor’s “trial tactics” were so egregious, Supreme Judicial Court Justice Ruth Abrams blasted her colleagues’ insistence on omitting his name:
“The prosecutor’s misconduct forces the friends and family of the victim to relive the trauma of the crime and again suffer the ordeal of a trial. The prosecutor’s misconduct penalizes the defendant, who again must undergo the fear and anxiety associated with a criminal trial. Why, then, is the prosecutor, whose conduct results in such consequences, not named in our opinion?”
NECIR identified four prosecutors whose actions prompted judges to toss convictions more than once. Only one was disciplined and is currently in private practice.
The Supreme Judicial Court reversed the rape conviction of David Tucceri because the prosecutor, Middlesex County Assistant District Attorney J. William Codinha, “failed to disclose” a mugshot during the 1978 trial showing the defendant had a mustache at the time of the crime even though the victim said her attacker was clean-shaven.
A search of the bar overseers’ public database turned up no Codinha reprimand.
The Supreme Judicial Court said the prosecutor “must have been, and certainly should have been, aware before trial that the photographs existed.” The court did not name Codinha, whose name was found on Tucceri trial documents in a microfiche archive.
The Supreme Judicial Court reversed another of his cases in 1983, this time for what one of the SJC judges described as “egregious” conduct, which included inflammatory statements that likened the murder victim’s body to “charred meat.” During the trial for murder and arson, Codinha commented on the defendant’s decision not to testify at the trial – a constitutional right that prosecutors are not supposed to question. Upon retrial, the defendant pleaded guilty and received a life sentence.
Codinha, now in private practice, served in Middlesex for about six years, including as chief trial counsel in the prosecutors’ office. In 2013, Governor Deval Patrick appointed him to the Judicial Nominating Commission, which vets prospective judges.
In a brief phone interview, Codinha said he didn’t remember the two reversed cases, out of the many he prosecuted. He didn’t respond to subsequent questions.
Three prosecutions by Francis Bloom, a former assistant district attorney in Hampden County, resulted in convictions that were later reversed by the courts in cases that involved allegations of misconduct against him.
In one of the cases, George Perrot was convicted for rape and armed robbery as part of two break-ins in Springfield in 1985, when he was 17 years old.
In an unsuccessful appeal in 1995, judges upheld Perrot’s conviction but slammed Bloom’s behavior, saying he had “forged” a “bogus” post-conviction confession in Perrot’s name that implicated him in the rapes and robbery and had him pointing the finger at two close friends in another break-in. The aim was to coerce confessions from the friends, the judges said.
The forged statement didn’t come to light until after Perrot’s original trial, and wasn’t used against him.
But Perrot’s lawyer in the 1995 appeal, Kenneth Seiger, argued that his willingness to make up a confession cast a shadow over any evidence that Bloom used to get the conviction, including forensics and witness statements. The problem, he said in an interview, is that the jury never knew Bloom was capable of forging a confession.
“Wouldn’t you want to know if you were on the jury?” he asked.
In January of this year, a judge granted Perrot’s fourth motion for a new trial on grounds that hair evidence and expert testimony in the case was discredited by newer science. He was released from prison, prompting an appeal by Hampden County prosecutors.
Perrot’s mom, Beverly Garrant, said in an interview that the prosecution was “an attack on my family” too painful to describe – “almost 30 years for something he didn’t do.”
Bloom also prosecuted Mark Schand, who was 21 when he was arrested in 1986. A jury convicted him of first-degree murder based largely on the testimony of eyewitnesses. Three of the key witnesses later recanted – one on his deathbed – saying they had identified Schand in a line-up in exchange for Bloom’s and police officers’ promises of lenient treatment in separate charges they were facing.
Prosecutors are required to tell the court and jury when they have made such deals.
In Schand’s trial, Bloom disclosed a promise to one witness of help with a prison placement. In later court proceedings, he testified he made no other promises.
In 2013, a judge allowed Schand a new trial on the basis of new eyewitness testimony and a recantation by one witness. The Hampden County District Attorney’s office dropped the charges against him, which resulted in his release, and denied any misconduct.
Schand said his civil rights were violated in a lawsuit he filed last year, naming Hampden County and others. He alleged “a system that rewarded criminal suspects for cooperating with prosecution authorities by providing false testimony and false identifications” in exchange for leniency.
Schand, who has spent more than half his life behind bars, said when he went to prison his wife Mia was pregnant with their third child, who is now 28. “I missed their entire lives,” Schand said. “Now I’m a grandfather.”
After leaving prison in 2013, Schand said he had trouble finding a job because of a nearly three-decade gap in employment history and the sordid tale behind it.
“People are saying if you did 27 years you must have had some involvement – I can understand that,” he said. “I said just Google the case.”
The Board of Bar Overseers issued a statement reprimanding Bloom in 1993, describing the forged confession as “reprehensible” and “fraudulent.” Eight years later, after his work as a prosecutor, the board publicly reprimanded him again for improper financial recordkeeping.
Now in private practice, Bloom offers “top notch representation for persons severely injured by the negligence of others,” according to his website. Bloom declined to be interviewed about the prosecutions.
“I put it behind me a long time ago,” he said.
James Rodwell hasn’t been able to say that. Imprisoned for more than 30 years, he has asked Middlesex County Superior Court, in the latest of many such bids, to overturn his murder conviction, producing what he says is fresh evidence that prosecutors failed to disclose a testimony-for-favors deal.
A key witness who allegedly received the deal, David Nagle, testified in court that Rodwell confessed to the crime while they were both in the same jail. Nagle, now deceased, was being held for armed robbery and had been a paid informant for the U.S. Drug Enforcement Administration, according to court records. Middlesex prosecutors, who brought the case against Rodwell, have said over the years that Nagle received no compensation or favors in exchange for testifying against him.
But an affidavit by Rodwell’s attorney, Veronica White, says Nagle told her in 2012, in a recorded interview just months before he died, that a letter he wrote to the district attorney’s office speaking of “my deal to testify in a murder case” was a reference to the Rodwell trial. Her motion for a new trial says Nagle perjured himself.
In arguments on Rodwell’s motion last month, White said police and prosecutors withheld “mountains of exculpatory evidence.” Assistant District Attorney Laura Kirshenbaum argued that Rodwell’s claims about Nagle “can be easily dismissed,” and there was no undisclosed exculpatory evidence in his case file, which the state said it lost.
In the house where Rodwell grew up, the family’s Christmas tree is still up in the hopes he can see it if he’s released. He calls his parents nearly every day. He said he was anxious, as they expect a decision imminently on his appeal.
“The judge has my life in his hands right now,” Rodwell said.
Ed. Note: Rodwell was denied a new trial on May 20, 2016, with the trial court rejecting his claim that prosecutors had failed to disclose a deal with Nagle in exchange for his testimony. Rodwell is serving a life sentence without parole; his attorneys said they would appeal.
This article was originally published by The Eye, a publication of the New England Center for Investigative Reporting, on April 3, 2016. It is reprinted with the editor’s permission.
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