|Prosecutors vs. Journalists: The Gloves Are Off |
Joshua Marquis, district attorney for Clatsop County, Oregon, didn’t simply believe the Chicago Tribune got the story wrong—he knew it. As we talked last week, he dug into his Tribune file and read me the following passage:
“A [national] Tribune search found six prosecutors this century...who have faced criminal charges alleging the sort of misconduct at the heart of the DuPage 7 indictments—concealing evidence or using false evidence. Of those six, two were convicted of misdemeanors and fined $500 each, two were acquitted and charges against the other two were dropped before trial.”
Marquis was reading from “Trial & Error,” a 1999 Tribune investigative series subtitled “How prosecutors sacrifice justice to win.” He told me, “I’m a DA because my predecessor went to jail. The whole thing was on Court TV.”
The predecessor, Julie Leonhardt, was convicted in 1994 of forgery, tampering with public records, and misconduct. She’d tried and failed to squelch a reckless-driving charge against her fiance, a convicted felon on probation. Out of apparent spite, she’d then issued a fraudulent indictment against two police officers, one of whom had been connected to her boyfriend’s case, charging them with criminal conspiracy. Leonhardt spent two months in jail and was disbarred.
“My predecessor is a disgrace to my profession,” said Marquis. She’s also a contradiction of the Tribune’s premise that, as Marquis put it, “by their fundamental nature prosecutors are a bunch of rotters and nothing ever happens to them when they get caught.” Leonhardt was an embarrassing exception to overlook. The Tribune had published a story on her conviction.
The thing is, the Tribune didn’t overlook Leonhardt. Ken Armstrong, the Tribune’s legal reporter who with Maurice Possley wrote “Trial & Error,” knew about her case and ignored it. He told me this week that he only counted prosecutors who’d faced criminal charges for misconduct that caused a conviction to be reversed; Leonhardt’s case against the two cops collapsed before they ever went to trial. Armstrong and Possley made their criteria pretty clear in the first few paragraphs of their series. The passage Marquis read to me showed up midway through the third day’s installment, and it wasn’t written as carefully.
So Marquis, an experienced prosecutor who had a hunch about what the Tribune meant to say but recognized that it hadn’t, has an irrefutable contradiction he can point to.
The Tribune had high hopes that the combination of “Trial & Error” and the later “Failure of the Death Penalty in Illinois,” reported by Armstrong and Steve Mills, would win it a Pulitzer Prize this spring. Pulitzer judges weigh nominated stories by what they accomplish, and the Tribune’s had transformed the death penalty debate in America. In reaction, Governor Ryan ordered a moratorium on executions in Illinois, forcing the question on governors across the country.
But though the Tribune series did win plenty of honors—including a National Headliner Award, a Scripps Howard Foundation National Journalism Award, and a George Polk Award—the biggest one got away. A finalist in the public-service category, the Tribune entry was rejected by the Pulitzer Board, which received blistering letters from the National District Attorneys Association, the Illinois State’s Attorneys Association, and a group of assistant state’s attorneys in Cook County. And the argument continues.
Journalists celebrate the Tribune studies, particularly the second, and prosecutors condemn them, particularly the first. Last month, Brill’s Content placed the death penalty series on its “honor roll,” observing that “rarely does journalism have such a direct impact on a major area of public policy,” and reporting that “lawyers and journalists involved in death penalty cases...say the scope of the journalists’ work brought the death penalty debate to a level beyond polemics.” In April Editor & Publisher said the Tribune had thrown down the gauntlet for newspapers in other states: “If reporters were able to find so many inmates wrongfully convicted in Illinois—which has executed 12 people since 1977—where are the similar projects in Florida, which has executed 46; Virginia, with 76 executions; or Texas, with 211?”
Texas—whose governor, George W. Bush, has boasted that his capital-justice system works flawlessly—begs for scrutiny, and now it’s getting it. The Tribune and New York Times have both sent teams to comb Texas’s death row for injustices, and when Bush changed his stripes last week, postponing an execution for 30 days to allow for DNA testing, the Tribune played the story on page one.
But prosecutors continue to strike back. The president of the National District Attorneys Association immediately wrote Editor & Publisher to assail “Trial & Error” (which wasn’t the series the magazine focused on) as “inaccurate, misleading, and based on fatally flawed research.” Joshua Marquis sits on the board of the NDAA, and he tells me he suggested the research that produced the numbers the NDAA is rebutting with. He cochairs the NDAA’s media committee, “which I helped found on the theory prosecutors are not doing enough to reach out and be forthright and available to the press.”
Marquis accuses the Tribune of trying to project Illinois’ judicial shame onto the rest of the country. He argues that there have been some 400,000 homicide prosecutions during the period the Tribune examined—the paper’s earliest case was from 1963—and even if every last case counted by the Tribune were a solid-gold example of prosecutorial misconduct, this would still leave prosecutors on the side of the angels 99.9 percent of the time. That’s why Marquis, appearing with Ryan on Good Morning America this past Monday, told the governor that the only way to make capital punishment more fail-safe than it already is would be to abolish it.
But Marquis and the NDAA don’t accept the Tribune’s 381 cases at face value. Marquis told me three of the cases were from Oregon, so he looked them up and discovered they were all 25 to 30 years old and that in all of them the defendants were retried and reconvicted. “By prosecutorial misconduct the Tribune means ‘evil by prosecutors,’” Marquis said, but in his view the misconduct here was technical—prosecutors being held responsible for evidence that should have been turned over to the defense.
In his letter to Editor & Publisher, president Stuart VanMeveren of Fort Collins, Colorado, wrote that the NDAA had developed its own information “concerning 221 of 384 cited cases” (for some reason he didn’t use the Tribune’s number) and concluded that clear or possible misconduct could be identified in less than a third of them. He reported that in 26 percent of the 221 cases the defendant went free, either immediately or after acquittal at a retrial, while over half the time the defendant wound up retried and convicted of (or pleading guilty to) the same or a lesser offense. Said VanMeveren, “Our findings belie the impression given by the ‘Trial and Error’ series that all of the cases resulted in ‘exoneration.’”
Did the series give any such impression? Did it intend to? Yes and yes, says Marquis. “Why does the Tribune use words like ‘innocent,’ ‘exonerated,’ and ‘free’?” he wondered. “Because it wants to convey to its readers these were people who did nothing wrong who were snatched up by a corrupt system and thrown into prison.”
Given the subject matter, I’m not sure that words like “innocent,” “exonerated,” and “free” were avoidable. The declaration on page one of the first “Trial & Error” installment, “Innocent people went to prison, some to Death Row,” is manifestly true. But Marquis is clearly correct that the Tribune planted the idea of a “corrupt system.” Also on page one opening day was the headline “The verdict: Dishonor,” the subhead “How prosecutors sacrifice justice to win,” and the thumbnail description of the story asserting “A Tribune investigation finds 381 wrongful homicide convictions.” The opening sentence began, “With impunity, prosecutors across the country have violated their oaths and the law.”