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Reigning in the Prosecutors

By       Message WILLIAM FISHER     Permalink
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Writing articles about prisoners on Death Row is easy. Even after conviction, nagging
questions about guilt or innocence often remain. Most of the colorful characters in the
original cast are still around. All the suspense of a good whodunit is still there.

That's the easy part.

The hard part comes when it emerges that an innocent person has been sentenced to die
for a crime he didn't commit. And when the alleged reason is misconduct by the

Doing something about that is the hard part. Because prosecutors are powerful people.

And so it was with Tyrone Noling, who has been sitting on death row since 1990, when
he was convicted of murdering an elderly couple.

In 2009, 13 years after the original trial, prosecutors provided defense attorneys with
handwritten police notes from the investigations in 1990 in which a witness identified
another man as having committed the murders.

But the state is currently refusing to test DNA evidence collected from the crime scene
that might place this "other man" at the scene of the crime.

As in the case of Troy Davis, who was put to death in Georgia last year, at the time
Noling was charged there was no physical evidence and no witnesses to the alleged

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But Andrew Cohen, writing in The Atlantic, points out that when an aggressive
investigator took over the case, some witnesses began giving statements against Noling. 
Cohen adds that all these witnesses have since recanted their statements, claiming they
were pressured by the prosecutor.

And the Death Penalty Information Center, in a statement, said, "We pause for a moment
to highlight our concern about Noling's death sentence in light of questions raised
regarding his prosecution. Noling was not indicted until five years after the"murders
when a new local prosecutor took office. That new prosecutor pursued the cold murder
case with suspicious vigor according to Noling's accusers, who have since recanted their
stories and now claim that they only identified Noling as the murderer in the first place
because they were threatened by the prosecutor." 

Nonetheless, Noling was convicted on that testimony and remains on death row.

What to do about it? Well, in such cases, organizations and individuals traditionally
circulate petitions and contact their lawmakers. From time to time, we hear from the
American Bar Association or the Association of Trial Lawyers, calling for investigations
of prosecutorial misconduct, more oversight of prosecutors, or tougher penalties on
lawyers who break the rules. Sometimes, the media may pick up the odd story. But it
typically has a one-day life, failing to gain the traction needed to be widely publicized.

But now, four organizations are conducting a campaign do something about the dozens of
cases in which prosecutors failed to take the actions demanded by the law and their
professional code of ethics.

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The Innocence Project, Veritas Initiative, the Innocence Project New Orleans and Voices
of Innocence have embarked on a nationwide tour focused on Prosecutorial Oversight. Its
objective is to explore policy reforms to discourage overzealous prosecutors from trying
to make their own laws.

The tour, which includes stops in Arizona, California, Louisiana, New York,
Pennsylvania and Texas, will bring together participants from all aspects of the criminal
justice system including legal ethics professors, members of bar disciplinary committees,
prosecutors and judges. At the end of the tour, the groups will prepare a report with
recommendations for reform.

"We recognize that this is a complex problem. It is not easy to develop internal systems
in prosecutors' offices that effectively distinguish between error and misconduct nor
independent institutions outside of their offices that can adequately investigate and
remedy misconduct when it occurs," said Barry Scheck, Co-Director of the Innocence
Project, which is affiliated with Cardozo School of Law. The Innocence Project has
become celebrated for freeing hundreds of prisoners who were wrongfully convicted.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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