Mean Justice

Edward Humes’ 1999 Address to the Investigative Reporters and Editors National Conference

Pat Dunn is a retired high-school principal from Bakersfield, California, a law-and-order Republican who thinks Ken Starr is too soft on crime and whose mantra to his students, should they ever need help out in the real world, was always: “Trust the man in blue.”

Pat Dunn is also entering the seventh year of a life sentence for killing his wife, Sandy. He allegedly stabbed her in their bedroom, mutilated her corpse in a manner most uncharacteristic for spousal homicides, then drove her body in a pickup truck under cover of darkness to a desert grave sixty miles away. His supposed motive: Sandy wanted to leave him — and leave him penniless.

The case was treated as open and shut by the authorities in Bakersfield, California, where the DA takes great pride in proclaiming (accurately) that his town is the toughest on crime in the state. Not all that extraordinary, really — a typical story of greed and violence in California’s heartland. The only problem is that Pat Dunn is almost certainly innocent.

A microscopic police examination of the bedroom showed no evidence of anyone being stabbed there. Pat Dunn didn’t own a pickup truck. Fibers found on Sandy’s body did not come from his vehicles, nor did they come from the house. Sandy Dunn was not planning to dump her husband — on the very day she disappeared, she asked her financial advisor to make Pat the sole beneficiary of a very lucrative trust. (And since she had not yet signed those papers, Pat Dunn had several million reasons for her to live when she vanished in July 1992.) He had told the men in blue that his wife may have wandered off in a daze, becoming an easy victim for robbery or worse because she was suffering from memory problems, perhaps the early onset of Alzheimer's Disease that had claimed her mother years before. The authorities insisted this was a lie, notwithstanding numerous witnesses who backed Dunn’s story up. The only eyewitness in the case, a career criminal desperate for a plea bargain, materialized months after the murder — just in time to save what had been a moribund search for evidence against Dunn. Finally, scientific evidence in the case shows Sandy’s body was exposed to the elements in daylight — though the prosecution’s timeline dictates Dunn had to have killed his wife and disposed of her body before sunrise.

So why is Pat Dunn in prison? The answer, I believe, points to some disturbing consequences of our nation’s war on crime and, perhaps more to the point, the manner in which we in the news media have covered — and failed to cover — important issues arising from that “war.” In working on Mean Justice, it became clear to me Pat Dunn’s conviction is a case study of the sort of prosecutorial abuses that have led to wrongful convictions in recent years — but it’s the sort of story that, for the most part, remains woefully under-reported. I’ll get to why this is so a few moments. Suffice it to say that there is blame for this aplenty to go around.

Now, when a private investigator first approached me and suggested I take a look at Pat Dunn’s case, because, she swore, Pat was innocent, I was skeptical. I respected this investigator, but let’s face it, she was an advocate. And my experience as a courts beat reporter during my newspaper career in Tucson and my ten years of writing books about crime and criminal justice had given me sound basis for skepticism: I knew that the vast majority of cases that come through the courthouse involved guilty defendants, accompanied by such conclusive evidence that there seemed little room for doubt — and certainly no reason for prosecutors to resort to breaking the rules in order to win. We all know most cases end with a guilty plea, and most trials end in victory for the prosecution. And while I had seen things that disturbed me from time to time — questionable prosecutorial tactics, questionable verdicts, questionable rulings — I saw little evidence that prosecutorial misconduct and wrongful convictions were serious problems in the justice system. I now know I was mistaken on both scores.

But when I started Mean Justice and began researching the prosecution of Pat Dunn, I had nothing more than some doubts about the evidence in the case and questions about some apparent holes in the investigation of the murder of Dunn’s wife. I did not expect to find hard evidence of misconduct in his case — or of wrongful conviction on a massive scale. But that is just what I found.

After scouring courthouse records, interviewing various principals and previously untapped witnesses, I learned Pat Dunn’s trial had been marked by tainted witnesses, an error-ridden investigation and crucial evidence kept from defense, judge and jury. A prime example: The only eyewitness, a heroin-addicted felon who offered testimony in exchange for dodging six years in prison, had previously begged detectives for the chance to incriminate someone — anyone — so long as he could stay free. This offer was turned down flat because he was considered unreliable. Yet when he returned months later with an implausible story about accidentally witnessing Pat Dunn disposing of a body, he was embraced as a star (and case-saving) witness. Prosecutors never disclosed these prior efforts to become an informant, or the witness’s official status as lacking credibility — indeed, he was presented as a reluctant witness who had been loathe to cut a deal with the authorities. And Pat Dunn was convicted.

What made this story into a book, however, was the context. Bakersfield, California, and the surrounding County of Kern (immortalized half a century ago as a principal setting for John Steinbeck’s The Grapes of Wrath) has seen more than its share of Pat Dunns in recent years. Even as I arrived to begin investigating the Dunn case, I found two cases unfolding in the same courthouse at the same time: the re-trial of a teenaged athlete, whose murder conviction had been overturned due to jury and prosecutorial misconduct (he ultimately was freed); and the habeas hearing for four parents convicted in 1984 of being part of a molestation ring. Now the four defendants had proof that the medical evidence against them was quackery, that their children had been coerced into making accusations, and that evidence had been hidden by prosecutors. (After fourteen years in prison, they were exonerated and released.) I learned that hundreds of people came under investigation in the Eighties in Bakersfield for similar crimes; dozens had been imprisoned; almost all have seen their convictions overturned.

In researching appellate records — most of which were “unpublished” opinions that are not easily found through normal records searches — I found that illegal evidence, biased jury selection, coerced witnesses, false testimony, bad science, hidden evidence, and outrageous conduct in the courtroom had all been cited over the years as reasons for overturning murder, molestation and other felony convictions in Kern County. In not one of these cases had a prosecutor ever been disciplined or held to answer for the misconduct. Many of the cases had barely been reported in the local media and when they were, they invariably included the unchallenged assertions of the District Attorney that the overturned convictions were the results of liberal judges obsessed with elevating the rights of criminals over victims — assertions that, given the evidence of official malfeasance in the cases, are absurd. The numbers alone suggest a serious problem in this community: I found ninety-one wrongful prosecutions and convictions under the current District Attorney, who has been in office since 1982, and who enjoys considerable influence throughout the state.

So the Dunn case was part of a bigger story, about a town where the war on crime had taken a dark turn. When I tried to take the next step and put that story into a national context, I found that there was no way to track misconduct statistically. Appellate records capture only a fraction of the cases, and because of the tradition of using unpublished appellate opinions in cases of prosecutorial misconduct, even those records are incomplete. But based on those fractured available records, along with press clippings, I was able to identify 661 cases of wrongful convictions in major felony cases — most of them murder cases — around the country since 1990 in which prosecutorial misconduct or related official misbehavior was a factor. I also found that in the death sentences that have been overturned in recent years — about one out of 100 people sentenced to death since 1975 have turned out to be innocent — a principal reason for the false convictions was official misconduct. Ominously, the rate of these wrongful death penalty convictions has accelerated in the 1990s.

With that, I found the heart of the story I try to tell in MEAN JUSTICE: That, in the name of the war on crime, we have made our public prosecutors the most potent and powerful figures in public life. They have been trusted with the most amazing powers over life, liberty and property — with virtually no oversight or accountability. This is a dangerous combination that can easily lead to injustice. My experience working on this book has convinced me that more oversight is required, that by default, journalists must try to provide it, and that they can only succeed if the defense bar helps them do it.

But first, let me remind you how journalists typically come to cover the courthouse. You are a reporter — young, inexperienced. One day you go to work and your editor says, you have a new assignment. You are the new courts reporter. You have never set foot in the courthouse in your life, except when you paid a traffic ticket once. Your understanding of the legal system comes from watching Law and Order on TV; you think post-conviction relief is when the jurors get to use the restroom. So you grasp your notebook in sweaty fingers and you learn by trial and error. You do what journalists always do when they are up against something new: You do what all the other news people are doing, you pretend you understand what’s going on, then you look for someone to explain to you what you just saw and heard but could not comprehend. More often than not, this someone will be a prosecutor. Partly this is because we are conditioned to view them as “the good guy.” But it is also due to the fact that, fairly or unfairly, many journalists view defense attorneys as an unhelpful lot who tend to interfere with important journalistic tasks, like interviewing their clients.

When I speak to lawyers about my book, I urge them to remember this training method the next time they become convinced that the media is some organized and monolithic power out to thwart them. Courthouse coverage is for the most part an afterthought. It is an entertainment. It is a steppingstone for reporters eager for more prestigious assignments. The result of all this is that we cover the prosecutor in one of two ways: as an actor in the courtroom drama, or as a source of information. Sometimes we cover prosecutors as politicians, when they’re running for office or, as they have successfully done for the last twenty years, when they campaign for the tough laws that have filled our prisons over the last decades and that also, not incidentally, greatly increased prosecutorial power and discretion.

What we don’t do very well is bring to bear the sort of scrutiny routinely applied to other branches of government. We almost never cover prosecutors as representatives of an institution that wields tremendous power, possesses enormous resources, and that operates largely in secret, with little oversight and accountability. Their policy-making, decision making, personnel decisions, funding priorities — all are out of sight and rarely examined. What does your local prosecutor do when allegations of misconduct are raised about a trial prosecutor: Investigate? Ignore? Reflexively deny? Do your papers even know if a local prosecutor is accused or found guilty of misconduct? Most likely not. This is an oversight I urge you all to begin to address, to find ways to penetrate the barrier to covering prosecutors as agents of powerful institutions rather than courtroom actors, just as we would cover City Hall and the state Capitol and our leaders in Washington. If we don't do it, no one else will.

But be warned: It is extremely tough to get reliable information on prosecutorial misconduct, given a system that seems designed to minimize and hide it. It goes against the traditional methods we in the media have used to troll the courthouse and the D.A.’s office for stories. If you do it well, it is likely to cause coveted sources to dry up. And, finally, attempting to uncover wrongful convictions and prosecutorial misconduct is likely to be met with strong (even bizarre) resistance from prosecutors, who may be prone to suggesting that anyone who criticizes their actions must be a) in league with criminals, b) in league with criminal defense lawyers, c) are criminals themselves or d) worst of all, political liberals. I speak from personal experience here: The D.A. who is depicted in “MEAN JUSTICE ”has attacked me both professionally and personally; he ordered his staff to spend five months drafting a 150-page response to my book entitled Junk Journalism, paid for on the taxpayers’ dime; he even used his campaign fund to commission a poll to prove — big surprise here — he was more popular than me with voters (most of whom had not read the book). This is the same D.A. who proudly — and accurately — boasts of being the toughest DA in California (and I would suggest, the nation) in terms of people per capita sent to prison. His ultra-conservative law-and-order credentials (except for the part about sending innocent to jail or prison) are impeccable: He helped put the original Three Strikes law into effect; he led the successful campaign to oust former California Chief Justice Rose Bird; he authored several constitutional amendments to allow the use of illegally seized evidence in criminal proceedings; and he is the darling of the California victims’ rights lobby and their powerful ally, the prison guards’ union. He is not an easy fellow to take on, and many journalists are apt to conclude that there are better ways to make a living than tackling such stories. I should be so smart.

You also should understand that there is no more arrogant a story to tackle for a journalist. You will be called an Inspector Clouseau (I’ve had the distinction of being called this by two different D.A.s in two different decades.) You will be criticized for substituting your judgment for the professionals who investigate crimes; for the professionals who litigate them — particularly the prosecutors, whose job, after all, is not to win, but to do justice; for the judges who are there to protect the rights of the individual; and for the jurors, who are in the best position to look the witnesses in the eye and assess their credibility. What gall, it will be said, for a journalist to suggest that he or she knows better. That’s a daunting argument — not to a defense attorney, of course, who gets paid for gall — but it damn sure resonates at newspapers and publishing houses, I can assure you. The only way you can justify having such gall is if you have the goods. That takes digging, persistence, looking beneath the surface. I’ve brought some handouts that explain the highlights of the Dunn case and things to look for in possible cases of wrongful conviction.

Prosecutors are among the only professionals, other than foreign diplomats, who are immune from liability for misconduct and negligence. They routinely have been excused from the ethical rules governing other lawyers. They are permitted to pay for witness testimony with a variety of benefits (money, new identities, freedom) that would constitute bribery or obstruction if initiated by anyone else. Contrary to popular wisdom, the appeals process is increasingly weighted in prosecutors’ favor, with the most outrageous and unlawful prosecutorial behavior often tolerated under the legal doctrine of “harmless error,” and the majority of technicalities cutting against defendants, rather than in their favor. Journalists have done a disservice to the public and the cause of accuracy in journalism by allowing prosecutors to portray themselves as the embattled victims of a justice system that bends over too far to protect criminals, when in fact the opposite appears to be true. Even sentences, once the sole province of judges, are now largely decided by prosecutors. The decision has been made, in effect, to trust justice to prosecutors.

One result of this is detailed in MEAN JUSTICE: In all the many overturned convictions in Kern County, the District Attorney has never admitted a mistake or made an apology or changed the way his office does business. In the Los Angeles County District Attorney’s office, a career prosecutor long known for outrageous and improper conduct in the courtroom (kicking and threatening opposing counsel, lying to juries, misstating evidence) was allowed to continue to prosecute cases for many years — until finally, last year, a fed up state Supreme Court freed one of her defendants from death row and issued a blistering review of her record. But such reactions are few and far between: More typical is what happened when a Los Angeles-based federal prosecutor was chastised a few years ago in an appellate opinion for winning a case by lying in court. The only action taken by his superiors was to petition the appellate justices to remove the prosecutor’s name from the published opinion. The court obliged.

I have found that most people I have spoken to about my book have not thought about these issues from this perspective, and that given today’s deep distrust of governmental power, they are disturbed by its implications. One man in particular has helped put this on the national radar screen, far more effectively than my book, I daresay: Ken Starr.

People of course ask if I am anti-prosecutor and I say no, that I’m not about to say giving more power to prosecutors as a means of cracking down on crime is an inherently bad idea; it’s just that we have given them awesome power, then put them on the honor system when it comes to playing by the rules. I happen to believe that the vast majority of our public prosecutors are honorable men and women doing a tough, necessary and often thankless job — and doing it right. But in any group, there will always be those few who break the rules, by accident or design, withholding evidence, coercing a witness, lying to a jury. What happens then? Particularly when no one in the press is looking.

You can guess the answer: Innocents can be convicted. And prosecutors, in almost all cases, suffer not a whit.

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