CONNECTICUT

A study of criminal appeals from 1970 to the present revealed 325 Connecticut cases in which the defendant alleged prosecutorial error or misconduct. In 24, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In 11, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Out of all the defendants who alleged misconduct, one later proved his innocence.

Out of the cases in which the court ruled the prosecutor’s conduct prejudiced the defendant, 21 involved improper trial arguments and tactics, two involved the prosecution withholding exculpatory evidence from the defense and one involved the prosecution destroying evidence.

In January 2002, the state Supreme Court changed the way it examined prosecutorial misconduct. In a decision reversing the murder conviction of Leotis Payne, the court said it would begin considering a prosecutor’s behavior in other cases. In other words, even if a prosecutor’s conduct in a particular case might not be serious enough to deprive the defendant of a fair trial, the court might still reverse the conviction if the prosecutor had a history of similar misconduct.

“We exercise our supervisory authority in this context to redress repeated and deliberate misconduct by a prosecutor seeking to increase the likelihood of conviction even though that conduct does not necessarily require reversal as a due process violation,” wrote Justice William J. Sullivan in the precedent-setting opinion.

The Payne case involved the conduct of Michael Pepper, a New Haven assistant state’s attorney. Pepper’s improper trial arguments had previously prompted the court to reverse a conspiracy to commit murder conviction. The court had also previously examined Pepper’s trial arguments in two other cases but ruled they were harmless error.

In the Payne decision, the court held that Pepper “knew or should have known that the conduct was improper and was part of a pattern of similar misconduct in other cases.”

John Malone, an assistant state’s attorney in Hartford, said in his 26 years as a prosecutor, he has never seen so many appeals alleging improper prosecutorial arguments.

“It’s gotten so bad, they publish training on how to avoid improper argument instead of how to make proper argument,” he said. “I think there is going to be some evolution in it.”

Malone said that in the mid-1980s it became mandatory to record trial arguments, which could explain the fairly recent rise in these types of allegations. “Both parties used to agree that the arguments didn’t need to be transcribed,” he said. “The court reporter would be there so if someone made an objection, she would record it—but then she would stop typing.”

Connecticut courts have examined Malone’s conduct in at least four criminal cases.

On a November evening in 1987, a woman was walking down a dark street when someone forced her into a car, drove her to a parking lot and sexually assaulted her. The attacker knocked off her glasses, which prevented her from seeing farther than about three feet in front of her. The man eventually let her go, and she contacted the police. She described to police the make and model of his car as well as details about the inside such as a ripped car seat and a wristwatch hanging from the gear stick.

“Her description was so detailed,” said Malone, the prosecutor on the case. “There were a lot of little factors that were able to be corroborated.”

Police picked up Ricky Hammond, whose car matched the victim’s description down to the ripped child seat in the back and the wristwatch on the gear shift. The victim identified Hammond in a photo array. In May 1990, Malone prosecuted Hammond for the assault.

Before trial, Malone tested semen evidence found on the victim’s jeans. To his surprise, the results excluded Hammond. The results also excluded the victim’s boyfriend.

Malone said he immediately remembered a similar experience with the same lab in the early years of his career as a prosecutor. He had prosecuted a sexual assault case in which the defendant had confessed to sexual contact with the alleged victim, but his defense at trial was that the sex was consensual. At trial, it turned out the semen testing excluded the man. The jury acquitted him. Malone said the defense attorney, who was equally surprised, immediately asked the toxicologist how the results could excluded the man who had confessed.

“He said maybe the beakers got contaminated,” Malone said. “I was the only one who knew about that case, so I decided that it [the Hammond case] might have been botched up in the laboratory.”

Malone took a second look at Hammond’s case and interviewed the police and the victim. He said he interviewed the victim several times in different locations.

“I went to her place of work to get a different situation and my own evaluation,” he said. “Her description of him was right on the nose.”

After taking a second look at the case, Malone said he had no doubt that Hammond was the attacker.

“I’m not going to tell a sexual assault victim, you’re lying because the lab says this,” Malone said.

At trial, Malone argued to the jury that in light of all the evidence pointing to Hammond as the attacker, the semen sample must have been contaminated.

“It’s not a perfect process,” he said. “These are human beings doing these things in a hurry—it’s human error.”

The jury convicted Hammond, and the trial court sentenced him to 25 years in prison. He appealed his conviction, alleging, among other things, that Malone had argued facts not in evidence, invited speculation and asserted his personal opinion.

In 1992 the court ruled that Malone’s conduct was “clearly improper” but not so prejudicial as to require a new trial. The lack of evidence, however, prompted the court to reverse Hammond’s conviction. The court held that the blood test created reasonable doubt and his conviction couldn’t stand. “In the interest of justice,” the state Supreme Court reversed Hammond’s conviction.

Malone said he was ready to retry Hammond, but the victim felt let down by the system and decided not to go through another trial. “She thought she did everything she could,” he said. “Everybody can do their best, and the perfect result is not obtained.”

Malone said more sophisticated DNA testing of the semen evidence after Hammond’s release also excluded him.

Malone began his career in 1977 as a prosecutor in Connecticut’s 13th District trying misdemeanor cases. In 1981, he moved to the major crimes unit in Hartford. He worked major crimes cases until 1993, when he took a supervisory position in the felony division. He now supervises two or three prosecutors. In all, Malone said he has prosecuted more than 100 cases.

In 1987, Malone prosecuted Wilmer Paradise Jr. and Brian Ellis for a 1974 murder. Ellis opted to testify against Paradise in return for a lighter sentence. The jury found Paradise guilty and sent him to prison for 25 years to life. After the conviction, Malone unexpectedly recommended that Ellis receive a lighter sentence.

In his appeal to the state Supreme Court, Paradise alleged, among other things, that Malone misrepresented to the jury the deal he worked out with Ellis. The court held the misrepresentation did not deny Paradise a fair trial.

“In short, we conclude that the fact that the state altered its sentencing recommendation for Ellis, after it represented at trial that it would not, constitutes harmless error in this case…,” wrote Justice Glass in the opinion that upheld Paradise’s conviction.

Malone said he wasn’t planning on recommending that Ellis get less time, but ultimately did so because Ellis had gone through more than any other cooperating and testifying co-defendant he had dealt with in his career. Malone felt bad for him.

“He was just battered from pillar to post by the defense attorney,” Malone said. “It was a very stressful and difficult time for him, and he didn’t back down.”

Malone said he didn’t get a chance to explain why he recommended that Ellis get a lesser sentence. “If they have a mechanism where they are going to consider prosecutorial misconduct, they should have a hearing so we have a chance to tell what we did and why we did it,” he said. “When you read all these cases about misconduct, you get a skewed view of what is really happening.”  ¶ 7:14 AM