Prosecutorial Misconduct – Spotlight on Arizona

Gray Area copy

Michael Kiefer covers courts and the death penalty for The Arizona Republic.  He has recently written a four-part series of articles about prosecutorial misconduct in the Arizona courts titled “The Gray Area of Courtroom Conduct.”

Here is an excerpt from the opening section of the Part 1 article:

“There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.  In fact, they are often congratulated.  Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.”

You can read Michael Kiefer’s four-part series here.

In editorial fairness, a group of Arizona prosecutors wrote a response to Mr. Kiefer’s articles, which was posted on, and you can read their letter here.  Now, exercising editorial privilege, I will have to say this letter could be one of the biggest crocks of BS I have ever read.  I particularly like this sentence from the prosecutors’ letter: “The system is designed for the defense in that there are ethical rules that apply only to prosecutors.”  So … never mind that prosecutors often pay no attention to those “ethical rules.”   The position of prosecutor is endowed with more power of discretion than almost any other elected position.  There are things prosecutors can decide and do that even governors cannot decide and do.  Additionally, the prosecution has the police, the crime labs, a staff of attorneys, and they are funded by the taxpayers; while the defendant has to pay for his own investigators, forensic testing, and attorneys.

In Mr. Kiefer’s articles, you’ll find frequent mention of Maricopa County.  You know, the place where Joe Arpaio is sheriff.  More about Maricopa County in future posts.

14 responses to “Prosecutorial Misconduct – Spotlight on Arizona

  1. Mr. Locke, Thank you for posting this important series in your blog. Now people can read about something they’ve never seen in the major city paper of the Arizona Republic. Most of all your comment about the prosecutors’ letter is spot-on! …

    “The position of prosecutor is endowed with more power of discretion than almost any other elected position. There are things prosecutors can decide and do that even governors cannot decide and do. Additionally, the prosecution has the police, the crime labs, a staff of attorneys, and they are funded by the taxpayers; while the defendant has to pay for his own investigators, forensic testing, and attorneys.”

    Mr. Locke, Thank you for shining the harsh spot light on Arizona’s ‘injustice” system. The people, whose voices have been silenced under this reign of terror will greatly appreciate the attention you have brought to the subject of prosecutorial misconduct.

  2. Oct. 25, 2013 was the deadline for filing a comment in the Arizona Supreme Court Rules Forum on Case No. R-11-0033, Petition to Amend ER 3.8, Rule 42 – Ethics responsibilities of prosecutors. All the comments are posted on the site. This should be a case study of how the AG, the MCAO, prosecutors, lawyers, retired AZ SC judges and the public comment (have to be approved by the AZ Supreme Court to appear).

    The AG writes there are NO Brady violations in Arizona, see his letter, filed on the deadline day of May 20, 2013, when few would see it or be able to respond.

    The Maricopa County Attorney Bill Montgomery and Mark Faull, chief prosecutor (also chief prosecutor for disbarred ex-MCAO Andrew Thomas) comment there are NO wrongful convictions in Arizona, and no one has brought them new evidence or exculpatory evidence and on and on. See link below.

    Who are we to believe. Read all the comments and give us your thoughts.

  3. A 13th Arizona exoneration is Rachel Jernigan missing from the Exoneration Registry…..

    10/28/2013 4:23 PM
    R. Thomas
    Sun City West, AZ


    I support the amendment to ER 3.8. Prosecutor and Maricopa County Attorney are falsifying information to the public when claiming that no innocent person has been convicted in Arizona. There has, no doubt, been several, but I know of one for sure–Ray Krone! Nationwide, the number is over 1,233 innocent individuals that has cost taxpayers millions of dollars in lawsuits; as well as destroying the lives of their friends and family. Just in today news, two in Washington State are declared innocent–AFTER spending 17 years in prison!

    Prosecutors have a 95% or more conviction rate due to “plea bargains” that is nothing more than bribery. Bribery is a violation of Article II, Sec. 4 of our U.S. Constitution. Laws that allow immunity for prosecutors who abuse their power and destroy lives is immoral and evil.

    Exoneration Detail List – 1,233 Exonerations; 12 exonerated in Arizona

    Cruz Robert 33 Hispanic AZ Murder Death 1981 1995 Y
    Fish Harold 57 Caucasian AZ NC Murder 10 years 2006 2009
    Girdler, Jr. Ray 36 Caucasian AZ Murder Life 1982 1991 Y Y
    Grannis David 21 Caucasian AZ Murder Death 1991 1996 Y
    Krone Ray 34 Caucasian AZ Murder Death 1992 2002 Y Y Y
    McCrimmon Christopher 20 Black AZ Murder Death 1993 1997 Y Y
    Minnitt Andre 21 Black AZ Murder Death 1993 2002 Y Y
    Peak Carolyn June 39 Caucasian AZ F Murder Not sentenced 2000 2003 Y
    Prion Lemuel 30 Caucasian AZ Murder Death 1999 2003
    Robison James Albert 53 Caucasian AZ CDC Murder Death 1977 1993 Y
    Watkins John 18 Caucasian AZ P Sexual Assault 14 years 2004 2010 Y Y Y
    Witt Drayton 18 Caucasian AZ NC, SBS Murder 20 years 2002 2012

    Canion v. Cole, 208 Ariz. 133, 91 P.3d 355
    It is true that, by its words, Rule 15.1 does not apply to PCR proceedings, but to agree with the State that this is conclusive would allow the prosecution that unlawfully failed to disclose exculpatory information in a timely manner to continue to evade that duty and thwart the due process of law to which an accused is entitled. The Arizona Supreme Court held in State v. Schreiber, 115 Ariz. 555, 556, 566 P.2d 1031, 1032 (1977), that a Rule 32 petition should be granted when the prosecution’s non-disclosure of evidence denied the petitioner’s right to due process, citing the United States and Arizona Constitutions. Remand was required after defendant showed good cause and made colorable allegations of newly discovered materials.

    Martin-Costa v. Kiger, 235 P.3d 1040
    While the parent of a minor crime victim had limited standing to enforce any right guaranteed to the victim, neither the Victims’ Bill of Rights under Ariz. Const. art. 2, § 2.1, Ariz. Rev. Stat. § 13-4401 et seq., nor Ariz. R. Crim. P. 39 granted a crime victim the right to seek disqualification of the trial judge or defense counsel.

    State v. Talmadge, 196 Ariz. 436
    In criminal child abuse case, trial court’s ruling preventing Scottish expert on temporary brittle bone disease from testifying as defense expert witness was an abuse of discretion, and the error was reversible.

    Edmond v. Collins, 8 F.3d 290 (5th Cir. 1993)
    US v. Brumel – Alverez, 976 F.2d 1235 (9th Cir. 1992)
    Brady doctrine requires prosecution to produce exculpatory evidence and evidence useful for impeachment when requested to do so by defendant.

    Bartholomew v. Wood, 34 F.3d 870 (9th Cir. 1994)
    Prosecution’s failure to disclose material and favorable evidence to defendant will violate due process under BRADY, even when defendant makes no request for such evidence.
    US v. Aichele, 941 F.2d 761 (9th Cir. 1991)
    To escape BRADY sanction, disclosure must be made at time when disclosure would be of value to accused.

    US v. Hanna, 55 F.3d 1456 (9th Cir. 1995)
    1. “Brady material” is any evidence material either to guilt or punishment which is favorable to accused, irrespective of good faith or bad faith of prosecution.
    2. Prosecutor’s duty to reveal BRADY materials does not depend on request by defense.

    US v. Zuno – Arce, 44 F.3d 1420 (9th Cir. 1995)
    Under Brady, exculpatory evidence cannot be kept out of hands of defense just because prosecutor does not have it, where investigating agency does.

    Thank you,
    R. Thomas
    Sun City West, AZ

  4. AZ: “Hard-working prosecutors don’t deserve this ‘hack job'” by the AZ prosecutors | Arizona Republic 11.01.13 … (oh, really?)

  5. Docile Jim Brady – Columbus OH 43209

    ☺ Phil , comparing the comments to a “crock of BS” is insulting to real crocks of BS ☺

    Nonetheless, Peasley lied to the judge and the jury and encouraged a witness to commit perjury.

    Severely disabled or dead prosecutors do NOT (1) Lie to judges, (2) juries, (3) encourage or suborn perjury .

    ▼ aka ▼
    Kind Soul, an Ohio registered service mark August 2007-2017

  6. For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man | Mark Godsey

  7. Pingback: Ethical Dilemma of a ‘Difficult’ Client Cannot Be a Mitigating Factor | Once Upon a Trial

  8. We are a group of volunteers and starting a new scheme in our community.

    Your site provided us with valuable info to work on. You have done
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  9. The Duke/Nifong false allegation case led the way in prosecutorial misconduct – the tip of the iceberg.
    “N.C. judge overturns Darryl Howard conviction, finds prosecutor misconduct by Mike Nifong” by Radley Balko 5/27/14

  10. Can someone please tell me one thing . I had a civil traffic court case. And in which I had a strong case. I have been studying law for 2 years now, and the more I uncover, the more I research the source of that material. Anyways I have my video evidence proving that the cop either lied, or the prosecutor did. Either way, these videos were damaging to her case. Now just a week or so prior, lady prosecutor files a notice of appearance, making her counsel for the state. Why go thru all that shit, just to tell judge the morning of court,,,,, “my office usually don’t handle civil traffic cases. And the judge let her walk. I was shocked, no notice or motion was given to the court or the defendant. Mind u this was all after she pulled the cop out twice in the hall to coach him and have him act as prosecutor. This is wrong. O now am gonna go after each individually

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