Breaking the Rules
Who suffers when a prosecutor is cited for misconduct?
By Steve Weinberg
WASHINGTON, June 26, 2003 — When Larry Johnson walked out of a Missouri prison during the summer of 2002, exonerated by DNA testing from a wrongful rape conviction after avowing his innocence for 18 years, St. Louis legal community insiders nodded knowingly as word trickled out who had led the prosecution back in 1984—Nels C. Moss Jr.
Moss, assistant circuit attorney for the city of St. Louis and later a trial prosecutor in neighboring St. Charles County, earned a well-deserved reputation as an aggressive, effective trial prosecutor. During his 33 years of trying cases for the people, however, he simultaneously was a recidivist breaker of the rules by which prosecutors are supposed to operate.
After joining the St. Louis city prosecutor's office in 1968, Moss found his conduct formally challenged in at least 24 cases. In seven of those, judges reversed the conviction, declared a mistrial or issued some other ruling adverse to the prosecution.
Over the course of his career as a prosecutor, Moss reneged during trial on a pre-trial stipulation with the defense; called the jury's attention to the defendant's failure to testify, thereby compromising the Fifth Amendment rights of the accused; alluded to the defendant's uncharged criminal conduct, a violation of the rules of evidence; attacked the character of the defendant with information not in the court record; used inadmissible material from a separate trial of an accomplice; promised during jury selection or opening argument to present testimony never offered; attacked the truthfulness of defense counsel; cast aspersions on the integrity of an insanity defense; and inflamed jurors' passions during closing argument.
When one appellate panel reversed a conviction in a case won by Moss, a judge writing a concurring opinion emphasized that the blame lay with the prosecutor and not with the courts:
"Most regrettable ... is the fact that we are required to remand this case for retrial, with all of the expense, delay and inconvenience attendant thereto, because of a trial incident that need not and should not have occurred ... It was a deliberate effort by one of the most experienced assistant circuit attorneys in the City of St. Louis to interject even more poison than his extensive review of defendant's prior convictions had already accomplished ... The sole purpose ... was to poison the minds of the jurors regarding the defendant's character ... Where, as in this case, the record discloses a patent effort to deprive a defendant of a fair trial, the onus for the delay and added expense should be directed toward the prosecutor who caused it. This is especially true when, rather than resulting from youthful zeal, the error is but one example of a consistent pattern of improper tactics reflected by other transcripts in cases tried by the same experienced prosecutor."
This is a very interesting multi-article/issue expose on our justice system and the cracks in it that result in both intentional and unintentional erroneous prosecutions and convictionshttp://www.publicintegrity.org/pm/default.aspx
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