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November|December 2003
Unbecoming Conduct By Steve Weinberg
Trials, but Mostly Tribulations By Wade Chow
Delusions of Grand Juries By Niki Kuckes
Ramsey Clark's Prosecution Complex By Josh Saunders
The Diplomat's Dance By Romesh Ratnesar

Unbecoming Conduct

A prosecutor in Nashville is accused of manipulating evidence to send a defendant to death row.

By Steve Weinberg

ON A JULY AFTERNOON IN 1987, a jury in Nashville found James Lee Jones Jr. guilty of murder. The jurors had heard overwhelming evidence that, 17 months earlier, Jones and his acquaintance Harold Miller had entered the home of Patrick Daniels, a part-time drug dealer, with the intention of robbing him. Prosecutor John Zimmermann wanted Jones, who was 36 at the time of the trial, to die for the crime. He had argued throughout the trial that Jones had plunged a knife into Daniels and then stabbed Daniels's girlfriend Norma Norman, leaving her for dead as well. The jurors now had to decide whether to send Jones to death row. "Ladies and gentlemen," the prosecutor told the jurors as he pivoted toward Jones, "you're looking at a depraved man."

Norman, though seriously wounded, survived and identified Jones and Miller to the police. But her eyes had been taped shut by the perpetrators before the stabbings began, so she did not know whether Jones or Miller had wielded the knife. Jones's lead defense attorney, Lionel Barrett, argued that Jones should not get the death penalty because Norman couldn't be sure that he was the stabber—and neither could the jurors.

Barrett, who had made his name in Nashville defending suspects who lacked the ability to pay, hadn't prepared well for this trial. He had recently gotten into financial difficulties and was overwhelmed by his caseload. But he hoped that he could save his client's life by persuading jurors that there was reasonable doubt about the stabber's identity.

Jones had remained in Nashville after the murder, Barrett said, even putting in a full shift the next day at the religious publishing house where he worked. Miller, on the other hand, had fled to Pennsylvania and remained a fugitive for more than a year. Miller also had a motive to lie. He had cut a deal with Zimmermann before the trial began, promising to identify Jones as the stabber if the prosecutor did not pursue the death penalty against Miller. (Miller ended up serving eight years in prison.)

Now that the trial had reached its penalty phase, Zimmermann was allowed to introduce evidence of Jones's criminal past. Jones had been convicted in 1972 of fatally stabbing another inmate while doing time at a federal penitentiary in Petersburg, Va., for assaulting a man with a knife. After being paroled in 1983, Jones found his way to Nashville, where he worked as a shipping clerk, joined an organization dedicated to ridding African-American neighborhoods of drug dealers (Jones is African-American), and met the woman who became his wife. But even these positive developments failed to keep Jones on the straight and narrow. This second homicide ought to be the end of the line for Jones, Zimmermann told the jurors.

At the time of the 1972 murder, Jones had said that he acted in self-defense because he feared being raped by other inmates. Barrett hoped that the mitigating circumstances surrounding the prison murder, combined with doubt about who had wielded the knife in the Nashville killing, would persuade jurors to spare Jones's life.

Zimmermann wanted to stave off this line of defense. The prosecutor suspected that Jones was lying about his fear of rape 15 years earlier. Anticipating what the defense might argue at sentencing, he had located David Lowe, the federal prosecutor who tried Jones in 1972. Zimmermann learned that Lowe suspected Jones had engaged in homosexual activity with the man he had killed and with another prisoner. "Institutional records indicate that Jones may have been beaten by these two inmates when he refused to return sexual favors," Lowe wrote to Zimmermann.

Dissatisfied with Lowe's account, Zimmermann probed further. He found a statement Jones made to FBI agents the day after the prison killing. Jones told the agents he had been forced to engage in sex and was worried the situation would get worse. In the FBI statement, Zimmermann noticed a reference by Jones to rival prison factions, one with roots in North Carolina, the other with roots in Washington, D.C. In what appears to be a leap of logic, Zimmermann surmised that the rivalry, not Jones's fear of rape, might explain why Jones stabbed the inmate.

Further investigation seemed to cut against his speculation. The prison's chief correctional supervisor and its warden had written separate memos within four days of the murder. Neither mentioned rival prison gangs or any motive other than Jones's fear of sexual assault.

Zimmermann would not give up the idea that Jones had lied about his need to defend himself in '72, though. He had invited William Delagrange, an FBI agent who interviewed Jones that year, to Nashville as the trial got underway. Zimmermann queried him about the prison factions. According to Zimmermann, Delagrange mentioned a turf war in the prison between two gangs over controlling the drug trade. Good enough, the prosecutor thought.

Even before the penalty phase of the trial had begun, while the jurors were still deliberating about Jones's guilt, Zimmermann ushered Delagrange to the back of the courtroom to meet Barrett. Zimmermann told Barrett what Delagrange had said about the gangs, and left the two men alone to converse. Zimmermann had listed Delagrange as a witness at sentencing. The addition of Delagrange to the witness list scared Barrett into believing that if he introduced self-defense as a mitigating factor in the prison murder, the FBI agent might contradict his client by testifying about the gangs and leaving open the possibility that Jones had killed the inmate for profit.

The bluff worked. Barrett decided not to argue self-defense. He also never obtained a transcript of the 1972 trial in the prosecutor's files, which arguably supported Jones's version of events. And Barrett never obtained evidence from the prosecutor that Jones may have suffered from mental illness—talking to nonexistent persons, banging his head against walls, threatening suicide, experiencing paranoia—around the time of the 1987 murder. Without this information, the jurors sentenced Jones to death.

A week after the trial, Zimmermann sent a thank-you note to Delagrange. "We anticipated that the defendant would attempt to explain the reason for his prior conviction as stemming from the defense of a sexual assault," Zimmermann wrote. He explained that although Delagrange had not been called to testify, his presence had intimidated Barrett so that the defense attorney never offered self-defense as a mitigating factor. "If there is anything these country boys down here in Nashville can ever do for a sophisticated Yankee federal agent, don't hesitate to call on us," he added with a touch of charm. "We may be slow, but we're pretty good at finishing what the Feds started."

DID ZIMMERMANN GO TOO FAR IN HIS ZEAL to send Jones, now 53 and known as Abu-Ali Abdur'Rahman, to death row? Six former state prosecutors in Tennessee filed a brief in 2002 urging the U.S. Supreme Court to order a re-examination of Rahman's death sentence based on Zimmermann's "egregious misconduct." Lower federal courts had refused to evaluate whether Zimmermann had committed misconduct primarily on the grounds that those allegations were raised too long after the trial. The prosecutors accused Zimmermann of misleading Barrett about the 1972 homicide. "If, as it appears, [Zimmermann] made a representation to defense counsel he knew to be false in order to cut off an avenue of defense, that falsehood violates all standards of professional conduct," they wrote. They also faulted Zimmermann for suppressing evidence about Jones's mental health; misrepresenting Jones as a drug dealer; and withholding forensic evidence that whoever stabbed the victim should have been covered in blood—of which the long black coat that Jones wore at the time of the murder contained no traces.

Prosecutors wield enormous power. They decide whether to charge an individual for a crime and how serious that charge should be. They decide whether to take a case to trial or to offer a plea bargain to avoid trial. Like all lawyers, they are required to act as officers of the court as well as advocates. Unlike defense attorneys, however, they have an obligation to represent not merely a single client, but the more diffuse and potentially competing interests of society at large. They are expected to win convictions, without sacrificing justice or neglecting their obligation to seek the truth.

Prosecutors follow the Model Rules of Professional Conduct outlined by the American Bar Association. Each district attorney's office also adheres to the codes of professional responsibility set out by their local courts as well as rules articulated by the U.S. Supreme Court and lower appellate courts.

The rules have changed over time. In 1963, the Supreme Court created a major shift in Brady v. Maryland, which required prosecutors to disclose certain kinds of information to the defense. Brady and cases like it emphasize that prosecutors' first duty is to the truth, not to winning a conviction, requiring them to provide to the defense any evidence that might prove a defendant's innocence or impeach the credibility of a state witness. A prosecutor who fails to reveal such information has committed a "Brady violation."

A Brady violation is one of the worst forms of misconduct that can occur outside the courtroom. When a prosecutor withholds significant evidence, the defense might never learn about it. For similar reasons, prosecutors are barred from interfering with a defense's pretrial attempts to question witnesses.

Prosecutors can also commit misconduct inside a courtroom. They can commit relatively minor infractions like expressing personal opinions or more serious violations like provoking a mistrial to avoid an acquittal. But this kind of misbehavior occurs on the record and is easier to redress. "Our system tolerates a certain amount of trial error and misconduct in the interest of ensuring the finality of judgments and conserving scarce judicial resources," explained Bennett Gershman, a former prosecutor who teaches law at Pace University. "Some errors and misconduct, however, are serious and cannot be over looked." The most serious misconduct, he added, is often precipitated by a mindset that is hard to police—as when a prosecutor decides a suspect is guilty and closes his mind to evidence that might suggest otherwise.

ZIMMERMANN WAS INSPIRED TO BECOME A LAWYER by a 1960s television show called The Defenders. Written by Reginald Rose, the author of the classic jury movie 12 Angry Men, the drama featured a father-son duo who Zimmermann recalled were always "fighting for justice and the right cause." Zimmermann believes that he has spent his life doing the same, though from the other side.

Zimmermann grew up on the move because his father served in the Air Force. But the family settled down in Nashville when Zimmermann started high school. In 1968, he enrolled in ROTC as an undergraduate at Middle Tennessee State University, receiving a commission as a second lieutenant. He then attended University of Tennessee College of Law and, after graduation, completed his four-year commitment to the Army by becoming a JAG lawyer. He didn't want a career in the military but he accepted an invitation to join the National Guard in 1981. Ever since, he has spent two weeks every summer and one weekend every month handling legal matters for the 278th Armored Cavalry Regiment, based in Knoxville. Now 53, he stays in shape by jogging and doing push-ups and sit-ups.

Zimmermann married his high school sweetheart, Ann Bagsby, during his junior year at college and joined her fundamentalist Church of Christ. Zimmermann was raised Catholic, but the conversion was comfortable. "I had lots of guilt and a strong desire to honor and obey my parents and authorities," he said. "I was basically a good kid, an altar boy, etc." Ann and John Zimmermann raised a son and daughter as well as a steady stream of foster children: two brothers from an African-American family and seven pregnant mothers, ranging in age from 12 to 22, who were referred to them by a local Christian adoption agency.

The couple decided to settle in Nashville in 1978. Soon after, Zimmermann began working for the state attorney general, where he spent some of his time responding to civil rights petitions filed by prisoners unhappy with their confinement. He enjoyed the appellate work but wanted to engage in the combat of trial. Four years later, he jumped at the opportunity to work as an assistant district attorney for Davidson County in Nashville. He took on drug dealers, gamblers, and child molesters—people who in his mind ranked among the worst of the bad guys.

Zimmermann's life is governed by the rules of God and of government. In a recent conversation, he challenged his many critics to study the Tennessee Supreme Court's disciplinary rule 7-102, which states that "a lawyer shall not knowingly make a false statement of law or fact." In the same discussion, Zimmermann also cited the Biblical verse Matthew 7:4 as an authority for the proposition that lawyers should not accuse opposing counsel of misconduct for strategic reasons. The verse reads: "Or how can you say to your brother 'Let me take the speck out of your eye' when all the time there is a plank in your own eye?"

Mixing his authorities has gotten Zimmermann into trouble. In 1999, the Tennessee Supreme Court reprimanded him for making inflammatory references to Biblical passages during the murder trial of Donald Middlebrooks, who was later convicted. "We have condemned Biblical and scriptural references in a prosecutor's closing argument so frequently that it is difficult not to conclude that the remarks in this case were made either with blatant disregard for our decisions, or a level of astonishing ignorance of the state of the law," the court stated. Zimmermann countered that he was merely reacting to the defense lawyer, who had recited "Thou shalt not kill" and "Vengeance is mine, sayeth the Lord" to the jurors.

Phrases like "seeing injustices righted and victims vindicated" pepper Zimmermann's speech when discussing the convictions he has won on behalf of Davidson County. But the prosecutor is most proud of a case that he did not take to trial. During his first year at the district attorney's office, he was assigned to a rape case. The victim reported that she had been sexually assaulted by a man she let into her apartment, thinking it was her husband coming home from work. A police dog tracked a scent from the victim's door to a nearby apartment. The victim eventually identified her neighbor living in that apartment as the rapist.

By the time Zimmermann entered the case as the trial prosecutor, the neighbor had been indicted. "The case looked solid; the victim was cooperative and appeared to have been traumatized by the offense," Zimmermann said. "But something didn't sound right." After interviewing the victim's relatives, Zimmermann became convinced that no rape had occurred. He discovered that the neighbor looked similar to another man whom the victim had invited into her apartment, apparently with consensual sex in mind. Zimmermann confronted the woman, who backed down, and he decided to dismiss the case, despite pressure from the prosecutor who had secured the indictment. "I didn't get a gold star," he recalled. "I was just doing what was right."

BUT WHAT DOES IT MEAN TO DO RIGHT AS A PROSECUTOR? And what constitutes misconduct?

The term "prosecutorial misconduct" has been around since the 19th century. After a former prosecutor objected to the use of the phrase by appellate judges three years ago, the chief justice of the Delaware Supreme Court responded: "A Westlaw search from 1944 to date reflects that the term 'prosecutorial misconduct' has been used by state courts 12,672 times, district courts 2,302 times, circuit courts 4,470 times, and the United States Supreme Court 58 times."

Prosecutors complain that the term fails to distinguish between honest and malicious errors. The Prosecutors Deskbook, which is published by an affiliate of the National District Attorneys Association, notes that allegations of prosecutorial misconduct often surface as "defense trial tactics" that are "rarely substantiated." Joshua Marquis, a district attorney who is a director of the association, adds that misconduct is rare and that the behavior of defense attorneys is not similarly scrutinized.

Defense attorneys counter that prosecutorial misconduct is underreported because it is frequently undetected unless a case reaches trial. In a typical jurisdiction, fewer than 5 percent of cases resulting in criminal charges proceed to trial. The small percentage of cases that are tried and appealed are scrutinized more closely. But even a finding of prosecutorial misconduct by appellate judges rarely causes adverse consequences for the offending district attorney. Appellate opinions almost never name prosecutors who have crossed the line, making it difficult for the public to hold someone accountable. Furthermore, a guilty verdict can stand even when a prosecutor has committed misconduct if the error is deemed "harmless" and would not have altered the outcome of the trial. "The harmless error rule, once an appellate mechanism to prevent technical violations from upsetting a verdict," Gershman said, "has evolved into the most powerful judicial weapon to preserve convictions despite serious errors or misconduct."

Prosecutors also enjoy almost complete immunity from lawsuits filed by defendants who have been wrongly convicted or otherwise mistreated. Every state has laws that protect public officials from liability when performing their constitutional functions. The Supreme Court rejected a challenge to one of those statutes in Imbler v. Pachtman (1976), finding that district attorneys should have absolute immunity as long as their actions are "intimately associated with the judicial phase of the criminal process." In 1997, the court allowed a prosecutor to be held liable for conduct deemed to be outside her role as an advocate, but such findings are rare.

The Justice Department handles disciplinary proceedings against federal prosecutors. And every state has a process for regulating its share of the roughly 30,000 prosecutors who work in the 2,341 district attorney offices across the nation. The procedure varies widely by state, but it is quasi-judicial in nature, and most states allow lawyers to appeal penalties in their courts. Lawyers who are the subject of complaints can hire counsel or represent themselves. A disciplinary board that finds misconduct has occurred can impose penalties including, in order of seriousness, a private reprimand, a public reprimand, a temporary suspension, or disbarment. Though precise statistics are hard to come by, few complaints seem to be filed against prosecutors each year. In a recent study, the Center for Public Integrity, a nonprofit organization based in Washington, D.C., found only 50 instances of prosecutors being disciplined by state boards since 1970.

No one has much incentive to complain about prosecutors. Defendants tend to possess limited economic means—and are eager to move on with their lives. Defense attorneys want to maintain good relationships with prosecutors to avoid jeopardizing clients. Judges, many of them former prosecutors, are inclined to protect the reputations of the attorneys in their courts and are loath to undermine the finality of cases decided by jurors.

Strikingly, Zimmermann has managed to attract a number of complaints. In Tennessee, the Board of Professional Responsibility has published three censures against Zimmermann—in 1989, 1994, and 2002. (Dismissed complaints and private reprimands are not made public.) It is unusual for a prosecutor to receive even a single censure, said Lance Bracy, a former prosecutor who directs the board's 10-person staff. Bracy, who has served on the staff since 1976, could recall a public proceeding against only one other district attorney in Tennessee.

Zimmermann first got into trouble for discussing a murder case with the media, which is a violation of the state supreme court rules. He told journalists, "The medical examiner said the victim was strangled, stabbed in the chest multiple times, and had his throat slashed all the way across. The photographs of the body were pretty bad. We are considering asking for the death penalty." Zimmermann insisted he was exercising his right to free speech, but the three lawyers who heard the complaint filed by his opposing counsel in the case found otherwise. Five years later, Zimmermann was reprimanded for telling a television journalist, "If we can't make the judges tell the truth to the juries, then we've got a twisted system, I think." The judge in question took the remark personally and filed a complaint. And Zimmermann was taken to task last year for failing to hand over exculpatory evidence to the defense during his 1992 prosecution of Claude Garrett.

Zimmermann told the jury that Garrett locked his girlfriend in a basement room before setting the house on fire. But an 11-page report by a police detective suggested the door was unlocked. The Tennessee Court of Criminal Appeals ruled that Garrett deserved a new trial based on Zimmermann's failure to disclose the report. "The prosecutor led defense counsel to believe that the state had no information about the locked or unlocked status of the utility room door," the court stated. Zimmermann did not turn over any of this information, as the Brady rule would seem to require.

Zimmermann's boss, District Attorney Victor Johnson, and the state attorney general's office defended Zimmermann's decision, arguing that the police report constituted hearsay and would not have been admitted as evidence. The appellate judges nonetheless pronounced themselves "extremely troubled" about Zimmermann's decision to "determine the reliability of the evidence and to refuse to turn over evidence he believes is unreliable, especially when the evidence is requested and is exculpatory."

Johnson has chosen not to dismiss, demote, or otherwise discipline Zimmermann. "John makes defense lawyers earn their fees," he said of his employee. "He won't win lots of popularity contests, but he's no subverter of the system's integrity." He added, "I know lots about John from the inside that defense lawyers don't see," referring to Zimmermann's candid evaluations of evidence, and he listed the prosecutor's virtues: an incisive mind, a willingness to work grueling hours, a rapport with police officers, and an ability to connect with jurors.

THE SIX TENNESSEE PROSECUTORS WHO FILED A BRIEF to the U.S. Supreme Court argued that Zimmermann's conduct in the Jones/Rahman case "taints all members of the Tennessee bar." They contended that the scientific evidence pointed to Miller, not Rahman, as the stabber—evidence that should have precluded capital punishment. They accused Zimmermann of masking "the weaknesses in his case by suppressing key documents and presenting misleading testimony from an accomplice." They added that Rahman suffered from the incompetence of his defense lawyer, but they turned even that against the prosecutor, scolding Zimmermann for exploiting the other side's lack of preparation: "The prosecutor's conduct was no less improper because competent counsel might have minimized the damage."

Zimmermann insists that he did not violate Brady, pointing out that Rahman knew about the reports evaluating his own mental health and about the transcript that was available of the 1972 murder proceedings. His lawyers could have obtained the reports by mental health professionals and the transcript of the trial without relying on the prosecutor at all. It's true that a prosecutor does not commit a Brady violation if a defendant with "reasonable diligence" could have obtained the undisclosed information. Zimmermann is likely technically correct. But did he violate his obligation to keep an open mind and to seek out the truth in court? Did his own certainty, and sense of righteousness, cause him unwittingly to violate Rahman's right to a fair hearing?

In April 2002, the Supreme Court granted Rahman a stay of execution 36 hours before he was due to be killed. But seven months later, the justices refused to intervene in the case, agreeing with the Sixth Circuit that it could not examine the record for procedural reasons. Rahman's lawyers have now taken their case back to the Sixth Circuit because of a change in Tennessee law. This past June, Rahman was saved once again—this time by the Sixth Circuit with 12 days to spare.

Rahman's lawyers have asked Phil Bredesen, the governor of Tennessee, to reduce their client's sentence to life imprisonment. Their clemency petition includes affidavits from eight jurors involved in the case stating that they might have voted for life imprisonment if they had known about evidence like the circumstances surrounding the 1972 prison murder. In the petition, a prison warden attests that Rahman has "worked hard in trying to be a positive influence on other death row inmates." He cites, for example, Rahman's efforts to mediate disputes between prisoners and guards. Zimmermann, District Attorney Johnson, and the state attorney general's office oppose clemency.

Zimmermann maintains that he did nothing wrong in the Rahman case. But in a recent interview in Nashville, he looked back on his combative career with some regrets and said that he has mellowed now that he is in his 50s.

Richard McGee, a defense attorney who has regularly opposed Zimmermann in court for two decades, agreed that the prosecutor has changed. "Zimmermann saw himself as a warrior for the state; he would scream and holler," McGee said. "Over the years, his willingness to listen and consider not only the other side from the legal perspective but also from the human perspective has grown tremendously."

Of his attempts to lead a Christian life, Zimmermann said, "I am not perfect, just trying." That has meant rethinking his worldview: "I've changed my mind about human nature, about all criminals being bad all the time. I know now that some defendants are good people who do bad things." The same can be said of some prosecutors.

Steve Weinberg is a writer based in Columbia, Mo.,who published a book on investigative reporting. He spent three years leading a national study of prosecutors for the Center for Public Integrity.

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