COURT CASES RAISE CONDUCT CONCERNS

Analysts look at the ethical line that's crossed when the desire to win
turns zealous prosecution into misconduct.

The star witness in a case that has been called the worst miscarriage of
justice in Texas history got all the headlines recently, after a judge
found that he lied in court in order to convict 38 people -- 36 of them
black -- on drug charges. But the district attorney in the dusty Texas
Panhandle town of Tulia knew that undercover cop Tom Coleman was lying on
the witness stand, and he did nothing to correct the record, according to a
scathing, 129-page critique of the original trials written by a judge who
reviewed the cases for a state appeals court.

Swisher County District Attorney Terry McEachern's silence, as well as his
failure to turn over information that could have discredited Coleman, meant
that ''it would be a travesty of justice to permit the convictions to
stand,'' retired Dallas judge Ron Chapman said in his report. Last week,
Chapman ordered that 12 of the defendants be released from prison.

The Tulia case is an extreme example of prosecutorial misconduct, which
legal analysts say is not as rare as it should be in America's criminal
justice system. It is virtually impossible to quantify how often misconduct
occurs. But analysts say prosecutors mischaracterize, conceal or tamper
with evidence, make inflammatory remarks or behave improperly in court
often enough to cause concern.

Two recent research projects have shed light on the problem:

* The Center for Public Integrity, an ethics watchdog group in Washington
studied more than 11,000 cases involving alleged prosecutorial misconduct
since 1970. The group found that in more than 2,000 of the cases,
convictions were reversed or reduced because of misconduct. The study found
a pattern of misconduct by local prosecutors in nearly every state.

''Year after year, there is conduct that either leads to a new trial for a
guilty person, which uses public resources and sabotages confidence in the
system, or leads to conviction of an innocent person,'' says Steve
Weinberg, who oversaw the study.

* The Innocence Project, which uses DNA testing to try to exonerate
convicted felons, found that 34 of the first 70 defendants it had helped to
exonerate had been subject to prosecutorial misconduct. Peter Neufeld,
co-founder of the project, says DNA testing has provided a window through
which prosecutors' conduct can be examined closely. ''But I assure you, it
hasn't just happened in these cases,'' he says.

Even critics in the defense bar agree that the vast majority of criminal
prosecutions are conducted properly, by honest prosecutors who abide by a
strict code of ethics. But the justice system is one of those arenas, like
medicine or airline safety, in which even the smallest percentage of
mistakes can produce catastrophic results. The courts consider
prosecutorial misconduct such a serious breach that they say it should
never occur.

''A prosecutor has a higher calling than just to win. He's got a duty to do
justice,'' says Ted Killory, a commercial litigator in Washington who
worked on the appeals of the Tulia defendants. ''It's essential for our
system to work that prosecutors not be just about racking up wins.''

And yet, certain prosecutors, focused on winning, sometimes cross the
ethical line. Some who campaigned for office by touting their conviction
rates succumb to the pressure to keep up with their statistics. Most of the
time, defense lawyers and prosecutors say, prosecutors who bend the rules
believe the defendant is guilty and want to put him in prison, even if the
evidence isn't totally persuasive.

Joshua Marquis, district attorney for Clatsop County in Astoria, Ore., and
a board member of the National District Attorney's Association, dismisses
the theory about overzealous prosecutors who bend the rules as spin from
the defense bar. He says prosecutorial misconduct is ''more episodic than
epidemic.''

''We're all seeking a zero error rate,'' he says. ''Is it realistic to
expect it? Absolutely not.''

He says prosecutors who misbehave are sanctioned by state bar associations.

''A fair trial is not only guaranteed to the defendant but to the people of
the state,'' Marquis says. ''The lawyer for the people has to be able to
zealously prosecute the case, and that means ethically they have to be
zealous, too.''

The study by the Center for Public Integrity is one of the most
comprehensive to date. Weinberg headed a team that spent three years
researching 11,458 appellate court decisions in all 2,341 state prosecutor
jurisdictions in the country. The team did not examine federal prosecutors'
conduct.

In the cases studied, 223 prosecutors were cited by judges for two or more
instances of misconduct. Two prosecutors were disbarred for mishandling cases.

''Prosecutors are the last sacred cow,'' Weinberg says. ''They are
unaccountable. Who is the boss of the prosecutor? You could say the voters,
but in most jurisdictions, most voters can't name the prosecutor.''

In Texas, Coleman faces trial this fall on perjury charges. McEachern has
not been sanctioned for his role in the Tulia convictions.

In the end, McEachern may answer only to the voters. He has been in office
since 1982. The Texas Bar Association will not say whether it is
investigating him. The bar has the authority to suspend him or strip him of
his law license.

The original Tulia criminal cases are being reviewed by the Texas Court of
Criminal Appeals. If the court recommends new trials, special prosecutor
Rod Hobson says he will dismiss the charges because they are based entirely
on Coleman's testimony.

Coleman worked alone for 18 months in Tulia and infiltrated a local drug
ring in the town's black neighborhood. He kept no written records, wore no
wire, filmed no video, produced no other witnesses or corroborating
evidence. No drugs, paraphernalia or money were seized during the arrests.
Without his testimony, the cases would have collapsed.

It is not clear precisely how much McEachern knew about Coleman's
background before he put him on the witness stand.

But in his report, Judge Chapman noted that McEachern ''knew or should have
known'' that Coleman had a reputation for dishonesty, had fled bad debts,
had been arrested for theft, had walked off previous law enforcement jobs
and was considered untrustworthy by law enforcement officials in other
counties. That information should have been provided to defense lawyers,
Chapman wrote, but it was not.

McEachern did not respond to a telephone request for an interview. His
assistant says he has been referring calls to Hobson, the special prosecutor.

During one trial in July 2000, Coleman testified that he had never been
arrested. In fact, he had been arrested in 1998 for allegedly stealing
gasoline.

According to his own affidavit, McEachern was aware of the arrest before
any of the original Tulia defendants was indicted. During one of the trials
in 2000, McEachern said he participated in Coleman's background check.

He also defended Coleman in court, noting in one of the trials that Coleman
had been named Texas' outstanding law enforcement officer of the year in
2000. ''If you can't believe him, well, then who can you believe?''
McEachern was quoted as saying at the time.

In his deposition three months ago, McEachern said he did not participate
in the background check.

A recent hearing to reconsider four of the original Tulia convictions was
halted when two special prosecutors appointed to handle the case agreed
with defense lawyers that Coleman lied on the stand and that the defendants
should be released.