Rhode Island Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 49 Rhode Island cases in which the defendant alleged prosecutorial error or misconduct. In four, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In two, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Out of the four cases in which judges found a prosecutor’s conduct prejudiced the defendant, two involved withholding evidence from the defense and two involved improper trial arguments. Both of the cases in which dissenting judges thought a prosecutor’s conduct prejudiced the defendant involved allegations of a prosecutor withholding evidence from the defense.

The former chief of the criminal division of the attorney general’s office, Michael Burns, prosecuted at least two of the 49 cases. In a 1987 murder case, the state Court ruled that Burns’ conduct prejudiced the defendant and reversed the conviction. In another case, a dissenting judge would have dismissed an indictment due to Burns’ conduct.

In March 1994, a state grand jury indicted then Governor Edward DiPrete and his son Dennis for extortion and bribery. The prosecutors assigned to the case were assistant attorney generals Michael Burns, Bruce Astrachan and Joseph DeCaporale.

The state’s charges were based upon the recollections of four witnesses, three of whom were unindicted coconspirators. Defense counsel immediately requested all exculpatory material, including information on the state giving deals to any of its witnesses. The state’s response to this request evolved into what a judge later called a “prosecutorial game of hide-and-seek.”

In July 1996, before the trial was to begin, prosecutors “suddenly found some thirty additional boxes of materials” and disclosed them to defense. After receiving the 68,000 pages of previously withheld documents, DiPrete’s defense counsel requested a discovery hearing.

After the hearing, which lasted 32 days, Judge Domenic Cresto issued a 38-page decision outlining how, in the words of a Rhode Island Supreme Court judge, the state had “deliberately concealed crucial requested pretrial discovery materials,” and “had not been truthful in their dealings with defense counsel, as well as with the court.”

Cresto found that Burns had intentionally concealed evidence of immunity and leniency deals that the state made with witnesses in exchange for their testimony, as well as evidence of past criminal activity on the part of four key witnesses. The judge also found that the state had “engaged in conduct that could be deemed criminal” when they assisted and participated with two witnesses to “cover up past criminal conduct…so as to be able to present them at trial as ‘clean witnesses.’”

Cresto dismissed most of the charges against the DiPretes because the Burns committed a “deliberate pattern of misconduct.” Two months later, the state Supreme Court reinstated the charges.

“The punishment of an errant prosecutor by dismissal of the charges is in effect a punishment imposed upon the people of this state,” wrote Justice Joseph Weisberger. “Only in the most extraordinary of circumstances should the people of Rhode Island be deprived of their right to a trial of these charges.”

Justice John Bourcier dissented, and rejected the majority’s decision that dismissing the charges would interfere “with the public interest in having the guilty brought to book.”

“That noble pronouncement overlooks first the fact that these defendants are still presumed by law to be innocent and, secondly, the majority’s statement appears to be strangely reminiscent of the chant heard from spectators in the ancient Roman Coliseum just before the lions were let loose,” Bourcier wrote.

He also wrote that the majority’s decision to allow the state to continue prosecuting DiPrete “sends a message to all prosecutors in this state” that they can continue to ignore discovery rules and “play hide and seek” with defense counsel.

“If not caught, no one will ever know,” Bourcier wrote. “If caught, the only remedial … penalty that can be imposed according to the majority’s holding will be a case continuance—which in effect simply means that the prosecutor’s game clock will have to be rewound and reset and the game replayed.”

Burns died from a self-inflicted gunshot wound in November 1997.
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