Scant discipline follows prosecutors’ impropriety in Massachusetts
By Shawn Musgrave
In 2012, the Massachusetts Supreme Judicial Court found “egregious prosecutorial misconduct” after an assistant district attorney withheld evidence a judge had ordered him to produce for the defense of a teenager accused of statutory rape.
The court decided to uphold a ruling dismissing charges against the defendant, a juvenile at the time of the alleged offense identified only as “Washington W.” The justices didn’t name his prosecutor, David Omiunu, who was identified by The Eye from other court records. No reprimand of Omiunu could be found in the public files of the Board of Bar Overseers, the state body responsible for disciplining lawyers. He remains a prosecutor in the Norfolk County District Attorney’s Office, whose spokesman said Omiunu made a procedural error in the case, and eventually produced the information the court sought.
The Washington W. case is one of many in Massachusetts in which findings of prosecutorial misdeeds or missteps were made without apparent consequence for the prosecutors, according to a review of more than three decades of Appeals Court and Supreme Judicial Court decisions.
The Eye examined over 1,000 rulings in cases in which defendants alleged prosecutorial misconduct from 1985 through last April, and found the Supreme Judicial Court and Appeals Court had reversed convictions at least 120 times in whole or in part because of prosecutors’ misconduct or error.
- More adverse findings against prosecutors. In at least 134 decisions since 1985, the two courts faulted prosecutors in reversing a guilty verdict or throwing out criminal charges. Eight more cases were found from 1980 through 1984. The decisions and cases are described in the accompanying table.
- In more than 100 of the decisions, judges characterized actions or statements of prosecutors as “improprieties” or “improper.” Judges described prosecutors’ behavior as “misconduct” or “egregious” or both in 20 cases.
- The decisions identified the errant prosecutor by name only four times. Relying on other court records, The Eye found the identities of 22 additional prosecutors responsible for the behavior faulted in the decisions.
- Some of the prosecutors whose missteps figured in the reversals advanced as public employees or reached other high legal distinction. Three went on to become judges, one became Massachusetts attorney general, and others rose to top positions in district attorneys’ offices and state legal-ethics bodies.
- Public records of decisions released by the Board of Bar Overseers name only two prosecutors since 1980 who were disciplined for improper trial behavior. An additional nine prosecutors received admonishments from the board for trial conduct without their names being released, the records show. The board has disciplined more than 1,400 attorneys overall since 2005.
Under a legal standard often cited by judges, a prosecutor’s misstep warrants a reversal when it is “prejudicial” against the defendant, meaning that jurors who reached a guilty verdict might have decided on acquittal if the prosecutor hadn’t stepped out of line. The rules governing lawyers in Massachusetts give several definitions for “professional misconduct,” including “conduct that is prejudicial to the administration of justice.”
The Massachusetts record fits a national pattern in which “prosecutors often act above the law and are not held accountable by state and local disciplinary boards,” said Daniel Medwed, a law professor at Northeastern University who has studied the criminal appeals process. “There is little excuse for neglecting to take action in the face of an appellate finding of egregious misconduct.”
Asked about the seeming disconnect between judicial findings of impropriety and its discipline of prosecutors, the Board of Bar Overseers declined to comment. Constance Vecchione, who investigates allegations against attorneys as head of the Office of the Bar Counsel, said there are many difficulties “inherent in a disciplinary prosecution of a prosecutor, including the age of the underlying events by the time the misconduct issue is raised.”
The two state courts ascribed many of the conviction reversals to prosecutors’ improper arguments, remarks or questions at trial. Justices have also found rarer missteps such as withholding evidence, improper rejections of jurors based on race or ethnicity, or violating a trial judge’s orders.
Improper closings are the most common fault, according to the decision history. Courts draw strict limits against suggestions that defendants are guilty simply because they didn’t testify — a right that is protected by the U.S. Constitution. Judges also take a dim view of prosecutors who misstate evidence or use overly-inflammatory emotional appeals.
A future AG stumbles
In one reversal, the Supreme Judicial Court awarded a new trial in 1995 to a man convicted of raping a 4-year-old, in a case prosecuted by Martha Coakley, then an assistant district attorney. Voters later elected Coakley district attorney for Middlesex County, and later made her attorney general.
Both of the state’s top courts determined that Coakley twice misstated evidence in her closing argument in the rape case, including by stating that the defendant masturbated in front of the alleged victim. The SJC ruled this was unsupported by evidence and put the defendant in an unfavorable light for the jury.
Coakley said in an interview that she thought her remark was based on reasonable inferences from evidence and testimony. After being granted a new trial, the defendant pleaded guilty to an assault charge and was released on time served and probation, according to court records.
“I’ve always prided myself — both as an assistant district attorney and as D.A. — on being fair. Sometimes the courts reach a different conclusion,” Coakley said. Now of counsel at the Boston law firm Foley Hoag, she acknowledged at the time of the appeal that another statement regarding the whereabouts of potential witnesses to the alleged crime — which the appeals courts deemed “pure speculation” — was an error.
Daniel Ford, one of the prosecutors who was reversed and later became a judge, argued the Commonwealth’s case against Bernard Baran, convicted of child molestation in 1985. After Baran spent more than 20 years in prison, the Appeals Court agreed to grant him a new trial.
Although the new-trial ruling was based on a finding that Baran had received an inadequate defense, the appeals decision said the prosecutor’s closing argument contained “toxic” errors and statements “apparently designed to inflame the jurors’ passions.” It also said “there are indications” that the prosecution deliberately withheld evidence favorable to Baran, including unedited interview tapes in which the child witnesses may have been coached.
Ford described the defendant, a teacher’s assistant at a Pittsfield day-care center at the time of his arrest, as a “chocoholic in a candy store” who “could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite.”
Baran was freed in May 2009, and the Berkshire County district attorney’s office declined to bring charges against him again. He died in September 2014. Ford is currently a Superior Court judge.
John Egan, an attorney for Judge Ford, disputed the court’s findings and directed The Eye to a 2014 letter that appeared in the Boston Globe about the case. In the letter, Egan said Ford’s conduct “has been thoroughly reviewed and found to be fully consistent with the ethical responsibilities of a prosecutor in 1985.” Egan said in an interview that the Office of Bar Counsel initiated an investigation and found no violation against Ford.
In 2002, the same year Judge Robert Tochka was appointed to the bench, the Supreme Judicial Court threw out one of his cases for misstating testimony in closing argument. Tochka “strayed far afield from the evidence” in a 1997 murder trial, according to the court’s decision. Tochka, who was appointed to the state Commission on Judicial Conduct in 2014, did not respond to requests for comment.
In a case often cited in subsequent court rulings on prosecutors, both the Appeals Court and SJC found that Howard Whitehead, then an assistant district attorney, made remarks about the defendant not grounded in the evidence.
Whitehead suggested that the defendant, accused of stabbing an elderly man, might have been a prostitute based on jar of Vaseline found in her purse, and dwelled on her knowledge of jello wrestling with an “apparent goal” of painting her “as a promiscuous woman,” the Appeals Court said, in reversing the verdict.
“None of this was proper. All of it was prejudicial,” the Supreme Judicial Court determined. The SJC ruling said that Whitehead had not argued “in an egregious way.”
Whitehead said he believes he argued the evidence appropriately in the case, and had never been contacted by the state bar overseers. After more than 15 years as a prosecutor in Middlesex and Essex counties, he was appointed to the Superior Court bench in 1993 and retired in 2014. He is now special counsel to the Middlesex County District Attorney’s Office.
The SJC reversed a first-degree murder case in 2008 because the prosecutor’s closing argument was “replete with prejudicial improprieties.” Afterwards, the state bar overseers reprimanded the prosecutor, Robert Nelson, Jr.
Nelson saw another case reversed in 2013 because he characterized the defendant as a “street thug,” the entire defense as a “sham,” and the defense attorney as a liar. The SJC determined that Nelson’s “insulting names” were “designed to evoke an emotional, rather than a rational, response from jurors.”
Nelson, who retired as a Norfolk County prosecutor in 2012, did not return inquiries.
The state’s top courts have criticized prosecutors for crossing the line every year since 1980. Last year, the courts handed down at least eight decisions citing prosecutors’ improper closing arguments as grounds for reversal. In one of three reversals this year, the Supreme Judicial Court found a prosecutor resorted to impermissible profiling by emphasizing the defendant’s appearance to convince jurors he was a drug dealer rather than an addict.
“Why is it that the Commonwealth consistently tries to use this kind of evidence?” asked SJC Justice Geraldine Hines at oral arguments last fall. A body of rulings that such “obviously prejudicial” evidence is impermissible “just doesn’t seem to be changing the way prosecutors do business,” Hines said.
Willful and repeated
In the 2012 ruling in the case prosecuted by Omiunu, the court dismissed the indictments against the juvenile defendant, and barred the Commonwealth from filing similar charges against him in the future.
The defendant, “Washington W.,” was charged with statutory rape of a teenage male in fall 2007. Contending he was being prosecuted selectively based on his sexual orientation, he successfully argued for an order from the Juvenile Court instructing the state to produce data comparing the prosecution of juveniles for heterosexual versus homosexual acts.
Omiunu brought the data to a subsequent hearing but refused to give it to the defendant. The judge said she was dismissing the charges due to the “Commonwealth’s willful and repeated failure to comply with discovery orders.”
A spokesperson for the district attorney said Omiunu should have filed a motion to vacate the judge’s discovery order rather than refuse to produce the information, and that the requested data was eventually provided. Omiunu has served in Norfolk County since 2001.
Brooke Williams, Naomi LaChance, Isaiah Thompson, Bret Hauff, Jacqueline Roman, Tristan Cimini, Alex Rozier, Iliana Hagenah, Amanda Lucidi, Clairissa Baker, Miranda Suarez and Debora Almeida also contributed reporting and fact checking.