Originally Published: July 13, 2017;
Updated: August 9, 2017;
Please read our explanation of updates made on September 11, 2017.

Introduction

Prosecutors wield extraordinary power in the criminal legal system. How they exercise their power can be the difference between fairness and inequality, justice and corruption, and a community with faith in its justice system or one that feels betrayed by it. Newspapers across the country have featured elected prosecutors and their offices where there have been failures to use this authority ethically, and in many cases, where prosecutors have engaged in illegal behavior in order to win convictions.[1] In New Orleans, elected District Attorney Leon Cannizzaro issued fake subpoenas, repeatedly hid evidence showing that his office had made deals with informant witnesses, and failed to turn over crucial materials to defense lawyers in a timely manner—jeopardizing convictions, public safety, and the trust of voters. In Orange County, California, elected District Attorney Tony Rackauckas has led an office embroiled in scandals involving a secret jailhouse informant program, the suppression of evidence, and falsified testimony. Earlier this year in Memphis, Shelby County District Attorney Amy Weirich faced formal disciplinary proceedings after the Tennessee Supreme Court concluded that she withheld key evidence from the defense in a murder trial and made improper arguments during her closing statement. This kind of misconduct has devastating results on people’s lives.

These disturbing stories and news reports came from diverse jurisdictions across the country. We decided it was important to investigate whether this behavior was isolated to these places and people—or even just to a few incidents—or whether it was part of pattern and practice of misconduct that runs through these offices and states. Our researchers conducted an exhaustive review of every available state appellate court opinion dealing with allegations of prosecutorial misconduct published in California, Louisiana, Missouri, and Tennessee from January 1, 2010 to December 31, 2015. We reviewed these opinions to determine whether the Court described misconduct attributable to the prosecution,[2] whether it found such misconduct to be harmful to the defendant, and whether the court reversed the conviction or provided some other form of relief. This data provides critical insight into whether elected prosecutors in New Orleans, Memphis, Orange County, and the City of Saint Louis engage in, or oversee offices that engage in, more misconduct than other offices throughout their states.

What we found is noteworthy – these four prosecutors, and the people who work with them, have repeatedly violated their constitutional and ethical duties, oftentimes shattering the lives of the defendants and their families. This report examines some of this misconduct and compares the rate at which it occurred with the rate that it occurred in other jurisdictions in these states. For each jurisdiction in these four states, we measured the total number of cases involving misconduct, the total number of cases involving misconduct per capita, the total number of reversals, and the total number of reversals per capita.[3] All of these jurisdictions ranked first or second in their respective state on at least one of these four metrics, and all of them ranked in the top five for at least two out of four of the metrics, making them distinct outliers in their states.

 Amy Weirich, Shelby County, Tennessee (2011 – Current)

Misconduct Rank #1 out of 95 counties
Reversal Rank #1 out of 95 counties
Misconduct Rank Per Capita* #10 out of 95 counties
Reversal Rank Per Capita* #6 out of 95 counties

Amy Weirich has been a prosecutor in the Shelby County District Attorney General’s office since 1991,[4] and she has been the Shelby County District Attorney since 2011.[5] In the time period we reviewed, the Shelby County District Attorney General’s Office had the highest number of misconduct findings—with more than a dozen—and the most reversals in Tennessee. Adjusted for population, out of the 95 counties in Tennessee, 89 percent had fewer misconduct findings per capita than Shelby, and 94 percent of counties had fewer misconduct-based reversals per capita. Leaders set the tone for an organization, and a look into Amy Weirich’s own record of misconduct, illustrates why Memphis cannot shake its misconduct problem.

The scope of misconduct in the office has included offenses such as failing to disclose relevant evidence to the defense, known as a Brady violation, as well as inappropriate conduct and statements during trial.

Weirich committed two different types of misconduct in a case involving a defendant named Noura Jackson, who was accused of killing her mother.[6] The misconduct was so egregious that the Tennessee Supreme Court overturned Jackson’s conviction in 2014, and chided Weirich for attempting to sway the jury by making inflammatory comments about Jackson’s constitutionally protected decision not to testify:

Given that the impropriety of any comment upon a defendant’s exercise of the Fifth Amendment right not to testify is so well settled as to require little discussion, it is not at all clear why any prosecutor would venture into this forbidden territory.[7]

Unfortunately, that was not the only misconduct that occurred during the case. Under the Fourteenth Amendment, the government has an ironclad duty to disclose exculpatory material – known as Brady evidence – to the defense prior to trial. Despite numerous defense requests for that material, the government withheld an inconsistent statement by its star witness which suggested that he had fabricated key pieces of his testimony – namely, his testimony placing Jackson at the crime scene during the time the murder occurred. This was particularly damaging given the witness’s status as an alternative suspect in the murder and the government’s lack of any direct evidence implicating Jackson.[8]

In December 2015, the Board of Professional Responsibility recommended that the Tennessee Supreme Court issue a public censure against Weirich.[9] The Tennessee Board of Professional Responsibility also filed a supplemental petition for discipline based on the Brady violation and Weirich’s failure to exercise appropriate diligence in reviewing statements and making disclosures to the defense team.[10] In March of this year, the Board dismissed the disciplinary petition and issued a private reprimand.[11]

Jackson’s case was not the first time Weirich had been warned about making inappropriate and inflammatory comments during trial. In a 2004 capital murder trial, Weirich utilized her opening statement to repeatedly call the co-defendants “greed and evil,” using that phrase a total of 21 times in the opening and closing arguments. The Tennessee Court of Criminal Appeals reminded Weirich that “[i]t is improper for the prosecutor to use epithets to characterize a defendant,” referring to her argument as “unseemly.”[12] And yet after the court granted one of the two co-defendants a new trial, Weirich again engaged in an “improper” argument, blaming the defendant for requiring jurors to expend “time and trouble” on the trial – a comment meant to bias the jury against the defendant.[13]

In 2004, in a separate case, Weirich accused a man named Vern Braswell of killing his wife. Braswell claimed he choked his wife during kinky, consensual sex but that she was alive, although not feeling well, when it was over and eventually died that night while in the tub. As the prosecutor and defense attorney delved through Weirich’s files while preparing for the post-conviction case, they made a troubling discovery — a suspicious sealed manila envelope with a sticky note on it containing the phrase “Do not show defense,” initialed “A.P.W.”[14] The original prosecutor on the case was none other than Amy P. Weirich. The post-conviction prosecutor then asked Weirich for permission to open the manila envelope. Some time later, the envelope disappeared. The defense has requested a new trial. In 2014, during a hearing on the matter, Weirich claimed both ignorance and lack of memory, “[i]f there were such an envelope and there were such a notation, no, I don’t recall doing that and that was not and is not my practice.”[15] The case is still pending.[16]

In yet another case, the Sixth Circuit Court of Appeals reversed a conviction in a death penalty case after Weirich failed to disclose that one of the main witnesses was paid for her cooperation in the companion federal case.[17] Although Weirich claimed she did not know about the payment, under the Constitution Weirich had a duty to discover and disclose this information prior to trial.[18]

Leon Cannizzaro, Orleans Parish, Louisiana (2008 – Current)

Misconduct Rank #1 out of 64 parishes
Reversal Rank #1 out of 64 parishes
Misconduct Rank Per Capita* #1 out of 64 parishes
Reversal Rank Per Capita* #2 out of 64 parishes

Leon Cannizzaro, Jr., was first elected in 2008 as the Orleans Parish District Attorney. He won reelection in 2014 and his current term expires in 2020. Cannizzaro also spent five years as an Assistant District Attorney. Cannizzaro’s tenure as DA has been marked by major controversies, especially constitutional violations in a number of serious and high profile cases. Based on our research, Orleans Parish ranks number one in the state of Louisiana for total number of misconduct findings, for total number of reversals, and for the total number of misconduct findings per capita. It comes in second for total number of reversals per capita.

Orleans has long been a hotbed for prosecutorial misconduct. Several famous U.S. Supreme Court cases have addressed misconduct, particularly Brady violations, by Orleans Parish prosecutors, including Kyles v. Whitley, Connick v. Thompson, and Smith v. Cain.

Unfortunately, under Cannizarro’s leadership, the office has carried on in that tradition. Our research turned up 20 instances of misconduct, ranging from hiding the existence of plea deals with witnesses to the systemic practice of disclosing information in an untimely manner.

In 2010, a judge overturned a capital murder conviction after Orleans Parish prosecutors failed to disclose at trial “a videotaped interview with prosecutors in which the state’s central witness contradicts her testimony on significant points.”[19] The prosecutors also withheld evidence about a plea deal it struck with one of the testifying jailhouse informants. The informant’s plea deal was characterized by the judge as “the deal of the century,” because the state had dropped the informant’s armed robbery charge even though he previously pled guilty to it and received a 15 year sentence.[20]

The Orleans Parish District Attorney’s Office continued its pattern of withholding plea deals in Jamaal Tucker’s murder trial. The government’s first two attempts at conviction ended in mistrials, one after a judge blasted the DA’s office for “playing games” and spurning a court order to disclose a state’s witness’s rap sheet.[21] The State secured a conviction in the third trial, but the parties eventually agreed to dismiss it after it became clear that the government did not disclose plea deals for two eyewitnesses. Worse yet, one witness had told the jury that he was testifying “out of the goodness of [his] heart” and that the “Orleans district attorney can’t do nothing for me” – a claim that rang false when a Lafayette Parish prosecutor allowed him to “withdraw his guilty plea to an armed robbery, citing phone conversations that the prosecutor had with Orleans Parish District Attorney Leon Cannizzaro.”[22] The other witness “had drug possession charges reduced” and “ended up receiving 80 days of jail time rather than a potential sentence of 40 years in prison.”[23] On the day Cannizzaro was scheduled to testify at a post-trial hearing about the phone call with the Lafayette Parish prosecutor, his office joined the defense’s request for a new trial.[24] When asked why Cannizzaro confessed error, the trial prosecutor Eusi Phillips stated, “I think he was going to be in an awful position trying to explain why he made that [phone] call.”[25]

In yet another case, this one involving an attempted murder charge against Henry Bruer, Cannizzaro’s office waited until mid-trial to disclose that the only eyewitness had made a deal with the State. When asked to explain the delay, Cannizzaro blamed the defense: “The defense attorney has to request [information on the existence of a deal], and if he doesn’t, we’re not obligated to give it to him.”[26] Cannizzaro’s comments reflect either a total misunderstanding of the law or an intentional attempt to obfuscate. A prosecutor has a duty to turn over Brady material in a timely manner irrespective of whether the defense asks for it.[27] The jury acquitted Bruer.

Shortly after that, the U.S. Supreme Court overturned Juan Smith’s conviction because of Brady violations committed by the office.[28] Cannizzaro’s office inherited Smith’s case from an earlier administration and defended Smith’s conviction throughout the appellate process even though Orleans prosecutors suppressed evidence that the single eyewitness had told investigators before trial that he could not identify the shooter. During the oral argument at the U.S. Supreme Court, the justices took the arguing prosecutor “to the woodshed,”[29] with Justice Elena Kagan asking whether Cannizzaro’s office “ever consider[ed] just confessing error in this case.”[30]

Tony Rackauckas, Orange County, California (1998 – Current)

Misconduct Rank #2 out of 58 counties
Reversal Rank #2 out of 58 counties
Misconduct Rank Per Capita* #4 out of 58 counties
Reversal Rank Per Capita* #4 out of 58 counties

Tony Rackauckas was elected in 1998 as the District Attorney of Orange County, California. Previously, he served for ten years in that office as a prosecutor. If he runs for reelection in 2018, he will have to face questions about the 58 allegations of misconduct launched against his office between 1997 and 2009.”[31] Those allegations have continued in the last several years, during which his office has been embroiled in numerous scandals. The Orange County District Attorney’s office ranked in the top five among all California counties for the total number of misconduct findings (3rd), the total number of reversals (2nd), and for the most misconduct findings per capita (5th), and it ranked first for the most reversals per capita. The scope of the misconduct has been wide-ranging.

In 2015, a judge removed the entire Orange County District Attorney’s office from a capital murder case involving defendant Scott Dekraai after finding that Rackauckas knew that “Orange County Sheriff’s Department deputies violated the rights of in-custody defendants by collecting illegally obtained confessions with the use of dubious informants, hid exculpatory evidence to aid prosecutors and lied under oath when questioned about the tactics.”[32] “After a period of what can at best be described as benign neglect concerning the actions of his law-enforcement partners,” the judge wrote, “the district attorney cannot or will not in this case comply with the discovery orders of this court and the related constitutional and statutory mandates that guarantee this defendant’s right to due process and a fair trial.”[33] Rackauckas claimed his office had no knowledge of the informant program, but Orange County Sheriff Sandra Hutchens called that into doubt, telling reporters that, “There’s no secret about it. Certainly, the District Attorney’s office has known about it for years.”[34]

That same year, in People v. Henry Rodriguez, the same judge again slammed the office, expressing “no doubt” that Rackauckas’ team “conspired against Rodriguez’s fair trial rights” when prosecutors were “‘instructed’ to ‘refrain’ from giving defense lawyers records of [] snitch rewards.”[35]

In November 2015, a group of legal experts, respected professors, and former prosecutors wrote a letter asking then U.S. Attorney General Loretta Lynch to investigate the Orange County District Attorney’s office, writing “it is fair to say that the criminal justice system in Orange County is in a state of crisis: charges in extremely serious cases have been reduced or dismissed; violent crimes—including murders—have gone entirely uninvestigated; to date, four law enforcement officers have refused to testify in pending criminal matters, citing their Fifth Amendment privilege against self-incrimination; and at least one prosecutor has been found by a court to have given ‘incredible’ testimony under oath. More troubling still, this all appears to be the tip of the iceberg.”[36]

In December of 2016, the Department of Justice announced that it had opened a civil rights investigation of the office that, among other things, “will seek to determine whether the district attorney’s office committed systematic violations of defendants’ Fourteenth Amendment due process rights under Brady v. Maryland by failing to disclose promises of leniency that would have substantially undermined the credibility of the informants’ trial testimony.”[37]

In December 2015, a Rackauckas-appointed panel of five legal experts issued a report which found that “in many ways, the OCDA’s Office functions as a ship without a rudder,”[38] underscored that some prosecutors in the office had developed “a win at all costs mentality,”[39] and emphasized that under Rackauckas “a certain ambivalence has developed about making suggestions or expressing concerns because, often times, ‘nothing ever happens or changes.’”[40]

Jennifer Joyce, City of St. Louis, Missouri (2000 – 2016)

Misconduct Rank #1 out of 115 jurisdictions
Reversal Rank #1 out of 115 jurisdictions
Misconduct Rank Per Capita* #2 out of 115 jurisdictions
Reversal Rank Per Capita* #4 out of 115 jurisdictions

Jennifer Joyce joined the City of St. Louis Circuit Attorney’s Office as an Assistant Circuit Attorney in 1994 and was elected as Circuit Attorney in 2000. She did not seek re-election in 2016,[41] and in 2017 Kim Gardner became the Circuit Attorney. Gardner, who previously worked as a prosecutor under Joyce from 2005 to 2010, won the election in part by pledging to pursue significant reforms.[42] Joyce’s tenure was marred by allegations of serious misconduct and it has been reported that she had a “polarizing legacy as a prosecutor and public official,”[43] and some of her prior statements have been called “irresponsible” and “unethical” by a fellow member of the bar.[44] The City of St. Louis Circuit Attorney’s Office ranked first in the state for total number of misconduct findings and reversals, and had the second highest rate of misconduct findings when adjusted for population size. It is too soon to know whether Gardner will allow this rate of misconduct to continue, or institute serious reforms as promised.

Our research found six instances of misconduct identified in court decisions between 2010 and 2015, ranging from hiding evidence from the defense to inappropriate behavior aimed at illegally influencing a jury.[45]

In 2013, the Missouri Court of Appeals chastised Joyce personally for making highly inappropriate statements on Twitter about a defendant in a rape trial, saying that the behavior threatened to “taint the jury and result in reversal of the verdict.”[46] The court was “especially troubled by Joyce’s timing because broadcasting such statements immediately before and during trial greatly magnifies the risk that a jury will be tainted by undue extrajudicial influences.” The court did not find, however, that “the jury was aware of or influenced by Joyce’s Twitter comments.” The court explained: “Nevertheless, even if the prosecutor’s public Twitter comments were improper, ‘the test is the fairness of the trial, not the culpability of the prosecutor.’”[47]

Joyce expressed no regret about her behavior, remaining “unrepentant and even buoyed by the court of appeals’ ruling.”[48] The Missouri Public Defender’s office, however, called her behavior “prosecutorial misconduct,” and the chief public defender for the City of St. Louis, Mary Fox, said that “[i]f the behavior is not going to stop, then perhaps the next step is a bar complaint.”[49]

In three other cases involving Joyce’s office, misconduct was found as a result of courtroom tactics: State v. Brown, 337 S.W.3d 12 (Mo. 2011) (where the prosecution “bypass[ed] normal evidentiary limitations by first showing the revolver to the jury in closing argument to rebut [the defendant’s] self-defense argument”); State v. Duncan, 397 S.W.3d 541 (Mo. Ct. App. 2013) (where the prosecution improperly impeached the defendant by mischaracterizing prior testimony); and State v. Perry, 447 S.W.3d 749 (Mo. Ct. App. 2014) (where the prosecution “went a bit too far in terms of suggesting special knowledge or commenting on a fact not in evidence, both of which are improper”).

In State ex rel. Koster v. Green, almost 30 years after he was sentenced to 95 years in prison for the rape and murder of a woman, George Allen’s convictions and sentence was vacated after a judge determined that material evidence was withheld from the defense.[50] Undisclosed evidence was discovered by Allen’s post-conviction counsel during an inspection of case files at Joyce’s office. The Court of Appeals specifically noted that the evidence in question had not been disclosed to the Circuit Attorney’s Office at the time of trial (prior to Joyce taking over the office) and said it was “unclear how and when the [undisclosed evidence] later came into the possession of the Circuit Attorney’s Office.”[51] The Court of Appeals nonetheless made clear that if material evidence is suppressed by the State, a defendant’s due process rights are violated “irrespective of the good faith or bad faith of the prosecution.”[52]

Although not counted among the six cases of misconduct between 2010 and 2015, another case during Joyce’s tenure–State ex rel. Joyce v. Mullen–highlights a concerning use of power with respect to the office’s long-standing policy of withholding information from the defense.[53] As described by the Missouri Court of Appeals in its 2016 ruling:

The Circuit Attorney has a long-standing practice, dating back some ten years, of deleting this information from police reports, even deleting the last known addresses, before providing the reports to defense counsel. The Circuit Attorney established this practice based on her own conclusion that Rule 25.03 was unconstitutional in light of an amendment to the Missouri Constitution adopted in 1992. That amendment provides that crime victims have a right to “reasonable protection” from a defendant. In the last ten years, the Circuit Attorney never sought the trial court’s permission to deviate from the mandates of the Missouri Supreme Court Rules and never sought a declaration that Rule 25.03 was unconstitutional. She seeks protective orders now, apparently for the first time, after protests from defense counsel.[54]

The Court of Appeals proceeded to “reject [Ms. Joyce’s] challenge to the constitutionality of Rule 25.03.” Moreover, the court upheld the trial court’s previous determination that Ms. Joyce’s efforts to show good cause for a protective order were insufficient. The Court of Appeals wrote that “the Circuit Attorney failed to allege any specific facts in support of her conclusions. Indeed, other than a listing of the involved charges in the case, the identical motions are completely devoid of any facts whatsoever.”[55] The Court of Appeals also explicitly stated that “the Circuit Attorney’s practice of routinely withholding [last known addresses] is in direct contravention of the mandates of the Rule. This practice should stop immediately.”[56] Mary Fox, the chief public defender in St. Louis, called Joyce’s practice, among other things, “an abuse of power.”[57]

The City of St. Louis Circuit Attorney’s Office has also been tainted by the misconduct and unethical behavior committed by long-time line prosecutor Nels Moss, Jr. In 1993, Moss prosecuted Reginald Clemons and put him on death row for the 1991 murders of Robin and Julie Kerry. Clemons came within two weeks of an execution date in 2009, [58] but eventually won a reversal of his conviction because prosecutors had suppressed evidence supporting Clemons’s claim that the police had coerced his confession by violently beating him. Moss also allegedly counseled police officers to “omit” several observations initially included in the police report.[59]

While Joyce remained conspicuously silent about Mr. Moss’ questionable and unethical behavior (which, to be sure, did not originally occur on her watch), she nonetheless defended the prosecution, conviction, and sentence during Mr. Clemons’ efforts to vindicate his constitutional rights.[60]

Despite evidence of this egregious misconduct, Joyce pledged to aggressively re-prosecute Clemons and seek the death penalty once again.[61] The prosecution was then transferred to the Attorney General’s Office and a new trial is currently pending.[62]

Conclusion

The prosecutors in these jurisdictions, all of whom are elected officials, are imbued with the public’s trust. And each and every one of them has violated it, not just on one or two occasions, but repeatedly. They have illegally concealed important evidence from the defense, made highly unethical statements and arguments, and committed other types of misconduct that undermines the integrity of criminal convictions in serious cases, and of the justice system itself. Prosecutors are tasked not just with seeking convictions, but also with seeing justice done.[63] Our research shows that these offices have failed in this task in very serious ways. They have some of highest rates of misconduct and reversals in their respective states. It is clear that the mechanisms for accountability are currently insufficient when a prosecutor breaks the law. A robust discussion about how to improve accountability and to address these injustices is sorely needed.

Methodology

Our researchers conducted an exhaustive review of every available state appellate court opinion dealing with allegations of prosecutorial misconduct published in California, Louisiana, Missouri, and Tennessee from January 1, 2010 to December 31, 2015 that was publicly available on Westlaw. We reviewed these opinions to determine whether the Court described misconduct attributable to the prosecution,[64] whether it found such misconduct to be harmful to the defendant, and whether the court reversed the conviction or provided some other form of relief. We measured the total number of cases with misconduct attributable to the prosecution for each jurisdiction in these four states, the total number of reversals, the total number of misconduct findings per capita* and the total number of reversals per capita.* (*Our per capita calculation is weighted to take into account several related factors, including total population size, population disparities across jurisdictions, and the rarity of judicial findings of misconduct in general.) Our rankings are accurate to the best of our knowledge based on available data.

Updates to This Report

This document was updated on August 9, 2017 to provide additional information about how we define prosecutorial misconduct, and to add additional details in the section about the City of St. Louis to provide further clarity about the scope and extent of misconduct in that jurisdiction. The report was updated again on September 11, 2017; please read a description of those updates here.

Acknowledgments

We would like to thank Bidish Sarma, Angelo Petrigh, Lauren Teichner, Mia Jackson, Craig Levine, and Dawn Milam for their assistance collecting and analyzing the data used in this report, and for their help writing, editing, and fact-checking this piece.

 About the Fair Punishment Project

The Fair Punishment Project is helping to create a fair and accountable justice system through legal action, public discourse, and educational initiatives. The Project is a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, The Accountable Justice Collaborative (at The Advocacy Fund), and The Bronx Defenders. A number of individual and institutional donors support our work, including Open Philanthropy Project and Vital Projects Fund.

Sources

[1] Hon. Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC xxii (2015) (“But there are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.”) (internal footnotes omitted)).

[2] Our determination that misconduct has been found in a particular case is based on our assessment of whether the published court opinion and other publicly available material makes clear that some breach or violation has occurred. This may cover all manner of conduct by the elected prosecutor and/or members of the prosecutor’s office and/or the “state” or “government” that is charged with prosecuting a criminal matter. As two-time Pulitzer Prize award-winning Center for Public Integrity previously explained, “prosecutorial misconduct” can fall into several categories: Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments); Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records); Failing to disclose exculpatory evidence; Threatening, badgering or tampering with witnesses; Using false or misleading evidence; Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial); and/or Improper behavior during grand jury proceedings. Steve Weinburg, Breaking the rules, The Center for Public Integrity (Jun. 26, 2003), https://www.publicintegrity.org/2003/06/26/5517/breaking-rules. The Fair Punishment Project also believes that prosecutors who fail to use their extraordinary power ethically, fail to follow rules applicable to their office, or who defend misconduct by other prosecutors or law enforcement officers also engage in “prosecutorial misconduct.” Consistent with prevailing case law, misconduct may occur in a prosecutor’s office—for example, the withholding of material information—“irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Further, while the elected district attorney identified may not have been personally involved in a particular instance of misconduct, his or her role as the elected district attorney in charge fully commits him or her to being responsible for all matters that involve the office.

[3] See supra note 2 for definition of “misconduct.”

[4] About District Attorney Amy Weirich, SCDAG.com, http://www.scdag.com/home/about-district-attorney-amy-weirich (last visited July 11, 2017).

[5] Id.

[6] During her closing argument, Weirich began by “walking across the courtroom, facing [the] Defendant, and declaring in a loud voice, while raising both arms to point at and gesture toward Defendant, ‘Just tell us where you were! That’s all we are asking, Noura!” State v. Jackson, 444 S.W.3d 554, 585 (Tenn. 2014), available at http://www.tncourts.gov/sites/default/files/jacksonn_opn.pdf p.2 (citations to the PDF file).

[7] Id. at 589.

[8] Id. at 597-98.

[9] See Petition for Discipline, In re Amy P. Weirich, No. 2016-2523-9-KH (La. Jan. 25, 2016), available at http://www.tba.org/sites/default/files/WeirichPetition_012916.pdf

[10] See Supplemental Petition for Discipline, In re Amy P. Weirich, No. 2016-2523-9-KH (La. Oct. 28, 2016), available at https://www.scribd.com/document/329561242/Weirich-2533-Full-Supp-Petition.

[11] See Adrian Sainz, Disciplinary Charges Dropped Against Tennessee Prosecutor, US News & World Report (Mar. 20, 2017), available at https://www.usnews.com/news/best-states/tennessee/articles/2017-03-20/disciplinary-charges-dropped-against-tennessee-prosecutor

[12] State v. Thomas, No. W2001-02701-CCA-R3DD, 2004 WL 370297, at *46 (Tenn. Crim. App. Feb. 27, 2004), aff’d, 158 S.W.3d 361 (Tenn. 2005). Although this case involved misconduct, it fell outside of the time frame in question for this report.

[13] State v. Bond, No. W2005-01392-CCA-R3CD, 2006 WL 2689688, at *9 (Tenn. Crim. App. Sept. 20, 2006). Although this case involved misconduct, it fell outside of the time frame in question for this report.

[14] Toby Sells, Attorneys Say DA Weirich Hid Evidence in Murder Trial, Memphis Flyer (Nov. 21, 2014), available at http://www.memphisflyer.com/NewsBlog/archives/2014/11/21/attorneys-say-da-weirich-hid-evidence-in-murder-trial.

[15] Toby Sells, The Brady Bunch: District Attorney Amy Weirich’s Prosecutorial Tactics Come Under Fire Again in a Steamy Sex-and-Murder Trial, Memphis Flyer (Jan. 15, 2015), available at http://www.memphisflyer.com/memphis/the-brady-bunch/Content?oid=3805817.

[16] The County Clerk’s office verified by phone that as of July 11, 2017, the case was still pending.

[17] See Thomas v. Westbrooks, 849 F.3d 659 (6th Cir. 2017); Katie Fretland, DA Amy Weirich Says She Didn’t Know About Witness Payment, The Commercial Appeal (Nov. 9, 2016), available at http://www.commercialappeal.com/story/news/courts/2016/11/09/da-amy-weirich-says-she-didnt-know-witness-payment/93557372/.

[18] See Toby Sells, Tennessee AG: Weirich Had No Knowledge of Secret Payment, Memphis Flyer (Nov. 9, 2016), available at http://www.memphisflyer.com/NewsBlog/archives/2016/11/09/tennessee-ag-weirich-had-no-knowledge-of-secret-payment.

[19] See Gwen Filosa, Jury Imposes Death Sentence for Man Convicted of Five Murders, Times-Picayune (Aug. 29, 2009), http://www.nola.com/crime/index.ssf/2009/08/jury_imposes_death_sentence_fo.html.

[20] Order Granting New Trial at 7, State v. Anderson, No. 472-217 (Orleans Parish, Crim. Dist. Ct. Div. B Mar. 7, 2010), available at http://media.nola.com/crime_impact/other/central-city-massacre-ruling.pdf.

[21] Gwen Filosa, New Orleans Murder Case Ends in Second Mistrial, Times-Picayune (Apr. 23, 2010), http://www.nola.com/crime/index.ssf/2010/04/orleans_jury_cant_reach_decisi.html

[22] New Orleans: Update – Federal Prosecution Ends in Federal Probe of Prosecutor’s Office, Open File (Mar. 11, 2013), http://www.prosecutorialaccountability.com/places-of-interest/new-orleans/.

[23] Id.

[24] See Scott Satchfield, Cannizzaro, Defense Attorneys Agree to Scrap 2010 Murder Conviction, WWLTV.com (Dec. 14, 2011), http://legacy.wwltv.com/story/news/2014/08/29/14417904/.

[25] See John Simerman, District Attorney Seeks Do-Over of Recent Murder Conviction, Times-Picayune (Dec. 14, 2011), http://www.nola.com/crime/index.ssf/2011/12/district_attorney_seeks_do-ove.html.

[26] John Simerman, Metairie Man Found Not Guilty in December Shooting, Times-Picayune (Nov. 9, 2011), http://www.nola.com/crime/index.ssf/2011/11/metairie_man_found_not_guilty.html.

[27] U.S. v. Bagley, 473 U.S. 667 (1985).

[28] See generally Smith v. Cain, 132 S.Ct. 627 (2012).

[29] Debra Cassens Weiss, News Coverage of Prosecutor’s Supreme Court Grilling Gets Snarky, ABA Journal (Nov. 9, 2011), http://www.abajournal.com/news/article/new_orleans_prosecutor_gets_a_supreme_court_grilling_over_withheld_evidence.

[30] Lyle Denniston, Argument Recap: Disaster at the Lectern, SCOTUSblog (Nov. 8, 2011), http://www.scotusblog.com/2011/11/argument-recap-disaster-at-the-lectern/

[31] Radley Balko, Counties That Send the Most People to Death Row Show a Questionable Commitment To Justice, Huff. Post (Nov. 25, 2013), http://www.huffingtonpost.com/2013/11/21/counties-that-send-the-mo_n_4317245.html.

[32] R. Scott Moxley, Caught Backing Lying Sheriff’s Deputies, Orange County Prosecutors Get Booted in Murder Case, OC Weekly (Mar. 12, 2015), http://www.ocweekly.com/news/caught-backing-lying-sheriffs-deputies-orange-county-prosecutors-get-booted-in-murder-case-6458888.

[33] Id.

[34] Marc Brown, Jailhouse Informant Scandal Rocking Criminal Justice System in Orange County, KABC-TV (Oct. 22, 2015), http://abc7.com/news/jailhouse-informant%E2%80%90scandal%E2%80%90rocking%E2%80%90oc%E2%80%90criminal%E2%80%90justice%E2%80%90system/1046811/

[35] R. Scott Moxley, Records Prove OCDA’s Knowing Duplicity in Snitch Scandal Once and For All, OC Weekly (Feb. 16, 2016), http://www.ocweekly.com/news/records-prove-ocdas-knowing-duplicity-in-snitch-scandal-once-and-for-all-6975784.

[36] Letter from Legal Experts to Attorney General Lynch Requesting Federal Investigation (Nov. 17, 2015), available at http://big.assets.huffingtonpost.com/RequestforFederalInvestigationOC.pdf

[37] Press Release, U.S. Dept. of Just., Justice Department Opens Investigations of Orange County, California, District Attorney’s Office and Sheriff’s Department (Dec. 15, 2016), https://www.justice.gov/opa/pr/justice-department-opens-investigations-orange-county-california-district-attorney-s-office-0.

[38] Orange County District Attorney Informant Policies and Practices Evaluation Committee Report 8 (2015), available at http://voiceofoc.org/files/2016/01/OCDAREPORT.pdf.

[39] Id. at 7.

[40] Id.

[41] Tim O’Neil, St. Louis City Attorney Jennifer Joyce Won’t Seek Another Term, St. Louis Post-Dispatch (July 2, 2015), http://www.stltoday.com/news/local/govt-and-politics/st-louis-circuit-attorney-jennifer-joyce-won-t-seek-another/article_fdcc9e10-839a-547e-a0c0-001332bede51.html.

[42] Joel Currier, Former Prosecutor Turned State Rep Takes St. Louis Circuit Attorney Primary, St. Louis Post-Dispatch (Aug. 3, 2016), http://www.stltoday.com/news/local/crime-and-courts/former-prosecutor-turned-state-rep-takes-st-louis-circuit-attorney/article_3f31a308-d84f-52bd-8d9e-f19e3dfb4ea3.html.

[43] Danny Wicentowski, Jennifer Joyce on Betrayal, Police Pressure and Succeeding in a Thankless Job, Riverfront Times (Jul. 25, 2016), https://www.riverfronttimes.com/newsblog/2016/07/25/jennifer-joyce-on-betrayal-police-pressure-and-succeeding-in-a-thankless-job

[44] Joel Currier, St. Louis judge grants hearings in circuit attorney’s fight to withhold victim, witness information, St. Louis Post-Dispatch (Jun. 14, 2016),

http://www.stltoday.com/news/local/crime-and-courts/st-louis-judge-grants-hearings-in-circuit-attorney-s-fight/article_374a8c76-7c12-5d6a-afd5-e516e294e98f.html

[45] See State v. Brown, 337 S.W.3d 12 (Mo. 2011) (conviction vacated because of trial prosecutor’s courtroom misconduct); State v. Polk, 415 S.W.3d 692 (Mo. Ct. App. 2013) (noting how troubling it was that state prosecutor, who was not involved in the defendant’s case, tweeted live updates of the defendant’s criminal trial and that such conduct “greatly magnified the risk that a jury will be tainted by undue extrajudicial influences”); State v. Duncan, 397 S.W.3d 541 (Mo. Ct. App. 2013) (conviction vacated because of trial prosecutor’s courtroom misconduct); State ex rel. Koster v. Green, 388 S.W.3d 603 (Mo. Ct. App. 2012) (conviction vacated because of suppression of evidence); State v. Perry, 447 S.W.3d 749 (Mo. Ct. App. 2014) (trial court found courtroom misconduct by trial prosecutor); State ex. rel. Clemons v. Larkins, 475 S.W.3d 60 (Mo. 2015) (conviction vacated due because “state deliberately violated Brady”; although her office did not handle the post-conviction litigation, Joyce publicly dismissed claims by Clemons that he had not received certain information at trial and, once relief was granted, made the decision to re-prosecute capitally).

[46] State v. Polk, 415 S.W.3d 692, 695-96 (Mo. Ct. App. 2013).

[47] Id.

[48] John G. Browning, Prosecutorial Misconduct in the Digital Age, 77 Alb. L. Rev. 881, 909 (2014).

[49] Robert Patrick, Appeals court ‘troubled’ by top St. Louis prosecutor’s mid-trial tweeting, St. Louis Post-Dispatch (Dec. 18, 2013), http://www.stltoday.com/news/local/crime-and-courts/appeals-court-troubled-by-top-st-louis-prosecutor-s-mid/article_036c54b6-0e7c-5ed7-837c-901b03b799ec.html. The Court of Appeals of Indiana in Compton v. State, 58 N.E.3d 1006, 1011 n.7 (Ind. Ct. App. 2016) later cited to the Polk decision as a case where the Court of Appeals of Missouri had “not[ed] how troubling it was that a state prosecutor, who was not involved in the defendant’s case, tweeted live updates of the defendant’s criminal trial and such conduct ‘greatly magnified the risk that a jury will be tainted by undue extrajudicial influences.’”

[50] 388 S.W.3d 603 (Mo. Ct. App. 2012).

[51] Id. at 617.

[52] Id. at 608. It is well-established U.S. Supreme Court precedent that “good faith” or “bad faith” is irrelevant with respect to a prosecutor’s obligation of disclosure. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995) (“But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.”) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). Another failure-to-disclose case of misconduct during Joyce’s tenure (but outside of the 2010-2015 time frame for this report) was Merriweather v. State, 294 S.W.3d 52 (Mo. 2009) (prosecution’s failure to disclose complainant’s criminal record grounds for reversal despite “no contention that the state acted in bad faith”).

[53] 503 S.W.3d 330 (Mo. Ct. App. 2016).

[54] Id. at 333 (emphasis added).

[55] Id. at 336.

[56] Id. at 338.

[57] Joel Curry, St. Louis circuit attorney, public defender clash over sharing witness information, St. Louis Post-Dispatch (Jun. 11, 2016), http://www.stltoday.com/news/local/crime-and-courts/st-louis-circuit-attorney-public-defender-clash-over-sharing-witness/article_5a25c2dc-1d02-5bee-b816-e58e5ddd7570.html.

[58] See Jennifer Mann, Hearing for Reginald Clemons in 1991 Chain of Rocks Murder Case is Delayed, St. Louis Post-Dispatch (Sept. 18, 2012), http://www.stltoday.com/news/local/crime-and-courts/hearing-for-reginald-clemons-in-chain-of-rocks-murder-case/article_a873b7e8-0d04-562f-99d9-39104d943337.html.

[59] See, e.g., Prosecutor Nels Moss Sweated on the Witness Stand, St. Louis American (Sept. 20, 2012), http://www.stlamerican.com/news/political_eye/prosecutor-nels-moss-sweated-on-witness-stand/article_91c3f412-02c7-11e2-b1d3-0019bb2963f4.html.

[60] For example, in March 2010, the St. Louis Post-Dispatch reported that Joyce publicly dismissed claims that Clemons’ defense team had not previously been provided with a rape kit test. The media reported that Joyce “said that she [could] prove the defense had it as early as 1994 and that she has no reason to doubt that it was available prior to the trial in 1993.” Joyce’s defense of this apparent violation does not appear to be true; indeed, the state supreme court later noted that the rape kit information had not been disclosed. State ex. rel. Clemons v. Larkins, 475 S.W.3d 60, 99 (Mo. 2015). Moreover, while Joyce may not have formally made an appearance in court during this post-conviction litigation, she was unmistakably involved in the matter. For example, on March 9, 2010, “[a] joint statement … from [Attorney General Chris] Koster’s and Circuit Attorney Jennifer Joyce’s offices” was issued explained that “the circuit attorney learned of the existence of lab reports in the custody of the St. Louis Police Department last year after assigning three top prosecutors to help review the case.” Heather Ratcliffe, No semen, but officials want to test Clemons evidence anyway, St. Louis Post-Dispatch (Mar. 24, 2010), http://www.stltoday.com/news/local/crime-and-courts/no-semen-but-officials-wants-to-test-clemons-evidence-anyway/article_1211be87-293b-5c86-a6f9-a2aa6a093079.html.

[61] Joel Currier, Reginald Clemons Transferred to St. Louis Jail to Await Retrial in 1991 Chain of Rocks Bridge Murders, St. Louis Post-Dispatch (July 18, 2016), http://www.stltoday.com/news/local/crime-and-courts/reginald-clemons-transferred-to-st-louis-jail-to-await-retrial/article_ccebb7b5-0bd4-5805-aa62-d1e6d987d4d0.html.

[62] Joel Currier, Reginald Clemons Murder Trial Pushed Back Over Claims State Violated Attorney-Client Privilege, St. Louis Post-Dispatch (July 23, 2017), http://www.stltoday.com/news/local/crime-and-courts/reginald-clemons-murder-trial-pushed-back-over-claims-state-violated/article_e2d5c01c-9068-56ed-b080-c97075e02668.html.

[63] Berger v. United States, 295 U.S. 78 (1935).

[64] See supra note 2 for definition of “misconduct.”