Alabama PROSECUTORIAL MISCONDUCT

The our study of Alabama appellate opinions addressing alleged prosecutorial error or misconduct from 1970 to the present revealed 325 cases. In 69, judges reversed or remanded a defendant’s conviction, sentence or indictment due to a prosecutor’s conduct. In five, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Out of those defendants who alleged error or misconduct, one later proved his innocence. Some 45 percent of those reversed were the result of the prosecutor discriminating in jury selection.

Of the cases in which judges ruled a prosecutor prejudiced the defendant, 28 involved the prosecution discriminating in jury selection, 27 involved trial behavior, nine involved withholding evidence from the defense, three involved a prosecutor taking the witness stand, one involved the denial of a speedy trial and one involved the use of perjured testimony.

Montgomery County District Attorney Ellen Brooks prosecuted Timothy Powell for a 1986 murder and robbery of a white woman in Montgomery County. During the jury selection process, Brooks eliminated 13 potential jurors who were African American. When the trial judge asked her to justify their removal, Brooks said some were too young or had traffic violations. The trial judge accepted her reasoning; the all-white jury convicted Powell, a black man, then sentenced him to death. Defense attorneys later discovered that not only did seven of the 12 jurors who ultimately served on the case have equally serious traffic violations, but many of them were younger than the jurors Brooks had eliminated supposedly due to their youthfulness.

In 1988, Brooks’ conduct prompted an Alabama appeals court to reverse Powell’s conviction and death sentence. In 1991, the Montgomery County District Attorney’s office retried Powell; a second jury convicted him and sentenced him to death. In 1993, his second conviction was also reversed because a different prosecutor, Bruce Leiberman, made improper comments during trial.

Appellate judges have ruled that Brooks’ discriminatory tactics deprived defendants of fair trials four times since she began prosecuting in Montgomery County in 1977.

Brooks said these cases all occurred during a time when the law was not as clear on discrimination in jury selection. The precedent setting opinion, Batson v. Kentucky, making it prejudicial to discriminate in jury selection came down in 1986.

“Those are all issues that are no longer occurring,” Brooks said. “The law became much clearer.”

When the Center asked her how her office has improved jury selection tactics since that time, Brooks said she would not talk about it.

“I’m not going to get into our personal inter-workings,” she said.

In another case, Brooks withheld an array of potentially exculpatory evidence. The appellate court reversed James Lewis Martin’s capital murder conviction in 1998 because “the verdict here was so tainted by the prosecutorial nondisclosure of material evidence that it is not worthy of confidence.” In Mobile County, Chris Galanos, who served as the jurisdiction’s district attorney from 1979 to 1994, was responsible for at least 10 reversed convictions. In one case, judges ruled that Galanos withheld evidence from the defense; in another, a dissenting judge ruled that Galanos did not disclose evidence to opposing counsel. In three, he tried to serve as both prosecutor and state’s witness. Galanos, 56, served as a circuit judge for the same district until he retired from the bench in 1999; he is now in private practice. He did not respond to requests for an interview.

Galanos’ repeated attempts to serve as both the prosecutor and the state’s witness prompted appellate judges to reverse three defendants’ convictions.

During David Lee Waldrop’s trial for a 1977 double capital murder, Galanos served as both the prosecutor and the state’s chief witness. An appeals court reversed Waldrop’s conviction in October 1982.

In 1982, Galanos prosecuted Bobby Tarver for capital murder. Again, Galanos attempted to win the conviction by serving as “the sole prosecutor that gave the opening and closing arguments, called all of the State's witnesses, and called himself as a witness to testify on behalf of the State.” The appellate court reversed Tarver’s conviction in June 1986.

In 1988, the appeals court reversed Robert Gilchrist’s murder conviction due to the same conduct. “The district attorney for the 13th Judicial Circuit, Honorable Chris Galanos, performed all the functions of trial counsel, then testified as a witness, then resumed his role as counsel examining the witnesses and made the closing argument before the jury.”

Alabama Archive

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