By David Porter
Associated Press
NEWARK, N.J. (AP) — More accountability is needed for prosecutors whose courtroom errors lead to convictions being reversed on appeal, according to a report released recently by the American Civil Liberties Union-New Jersey.
The report studied more than 500 criminal cases handled by New Jersey’s 21 county prosecutor’s offices that were heard by appeals courts between the beginning of 2005 and mid-2011.
The cases dated back as far as 2001.
Appeals courts reversed convictions in 53 of the 570 cases due to prosecutorial error and found prosecutors had committed less-serious errors in more than 150 other cases.
More troubling, according to the report’s authors, is that there seems to be a void when it comes to disciplining prosecutors who have committed errors in multiple cases.
Although some courts may have referred prosecutors to the attorney general or to district ethics boards, a search of every disciplinary report from Jan. 1, 2001, through Sept. 30, 2011, revealed “no instances of any prosecutor being disciplined for in-court behavior,” concluded the report, which noted the vast majority of prosecutors perform their jobs with skill and integrity.
ACLU-NJ policy counsel Alexander Shalom, who authored the report with Rutgers law professor George C. Thomas III and Judge Alexander Waugh, stressed that the repeat offenders are the exception rather than the rule and noted that 305 of 343 prosecutors studied had one or no errors.
“It’s a prosecutor’s office’s responsibility that when rules are transgressed, action has to be taken,” Shalom said. “These are not ethical violations but violations of the rules. If you make one, your supervisor should tell you. When it happens a second or third time, red flags should go up.”
The report said eight prosecutors were found to have committed three or more errors, including one, Steven Siegel, of the Warren County prosecutor’s office, who had committed errors in six cases, two of which were reversed on appeal.
The report named two other prosecutors with multiple errors: Bergen County’s David Calviello, with errors in four cases, including six errors in one closing statement, and Essex County’s Frederick Elflein, with errors in three cases leading to two overturned convictions.
Warren County’s acting first assistant prosecutor, Michael McDonald, questioned the report’s characterization of some of Siegel’s conduct but conceded errors had been made.
“We teach our people that trials are a passionate exercise from both sides but you have to be careful because there are 1,000 things a prosecutor can’t say during an opening or closing statement,” McDonald said. “That’s our burden and part of what our responsibility is.”
The Bergen County prosecutor’s office didn’t respond to emailed questions about whether Calviello had faced disciplinary action or retraining.
About two-thirds of claims of prosecutor error centered on statements made in closing arguments, when emotions can run high, according to the study.
Most of the other claims involved questioning witnesses, jury selection or withholding potentially exculpatory evidence.
Some prosecutor’s offices fared better than others when the number of reversible errors was compared to the number of overall convictions.
For example, Warren County had 1.4 percent of convictions statewide but 5.7 percent of total convictions reversed, and Essex County had about 17 percent of convictions but nearly 25 percent of reversals.
In contrast, Camden County had 6.2 percent of convictions during the study period but no reversals due to error.
Camden County Prosecutor Warren Faulk credited a culture of accountability that begins when assistant prosecutors are hired.
Before they try cases in front of juries, they start by drafting motions and appeals and then move on to juvenile court and then assisting on jury trials.
“We just have a good network in the office, and I think that’s part of it,” Faulk said. “It’s a culture that has existed for a while so I don’t take any credit for it. We know what the limits are and what they aren’t.”
Acting Essex County Prosecutor Carolyn Murray said her office conducts regular training on a variety of topics and a finding of prosecutor error would be incorporated into the training process.
Murray wouldn’t comment on whether Elflein had faced any disciplinary action.
But she said her office wanted to eliminate prosecutor error.
“We’re not perfect,” she said, “but we are trying to address the issue with supervision, oversight and training.”
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