The Bar: The Immunity of Prosecutors

Friday, Mar. 31, 1967

Just back from a vacation, Chicago's U.S. District Judge Joseph Sam Perry dealt quickly with a couple of routine items on his docket one morning last week. Then he turned to major business: Case No. 63-C-1426, that of Lloyd Eldon Miller Jr. Last month the Supreme Court reversed the 1956 conviction of Cab Driver Miller for the rape-murder of an eight-year-old girl near the Fulton County city of Canton, Ill. It was up to Judge Perry to answer the next question: Did the state have any basis for keeping Miller in custody?

Judge Perry listened to arguments from both sides. Then he announced: "Petitioner should not be compelled to stand trial again." And he added: "Here's a man who's been in the shadow of death for ten years. I don't know but what the punishment that he has suffered has been worse than death itself. Based upon the record as the Supreme Court analyzed it and as I heard the evidence, it would be impossible ever to convict the defendant."

Miller's father, sitting in the courtroom, wept. Then he and his wife drove to Stateville Penitentiary. After ten years, during which he had faced execution ten separate times, their son, now 40, walked through the gates pulling a handcart piled with his possessions.

Blood-Stained Pants

Miller's ordeal began two days after the brutal crime incensed Canton on a Saturday afternoon in November 1955. Because he had left town Saturday night in one of his boss's cabs, the police suspected Miller and prodded his confused girl friend, Waitress Betty Baldwin, to sign a statement implicating him. After he was arrested, Miller was held incommunicado for 52 hours, denied counsel and told that one of his pubic hairs had been found in the child's vagina. The police assured him that he was mentally ill and would go to a hospital if he confessed. They wrote his confession, and though he later recanted, it was deemed "voluntary" and used against him.

As physical evidence at the 1956 trial, Fulton County Prosecutor Blaine Ramsey presented a pair of "bloodstained" underpants that police had found one mile from the scene of the crime. The judge refused to let defense chemists analyze the pants, nor did Miller try them on. Miller usually wore boxer-type shorts; these were jockey type, and looked too small for Miller. But with those shorts, Miller's confession and his girl friend's testimony, Ramsey won the case hands down.

For seven years, the case bounced through nine appeals in state and federal courts. The strain was so great on Miller, who could only sit and wait on death row, that he was twice transferred to the psychiatric ward. Seven and a half hours before he was scheduled to be electrocuted in 1963, Miller won a stay for a federal habeas corpus hearing before Judge Perry, who heard testimony that raised troubling questions about the evidence in the 1956 trial.

For one thing, Betty Baldwin now spoke up and recanted her 1956 story. Then there was Miller's landlady; in 1956 she had refused to aid his lawyers after the prosecution told her that she had a constitutional right to silence. Now she testified that Miller had been asleep in his room at the time of the crime. As for the pubic hair, it was not Miller's—and Ramsey did not offer it as evidence at the original trial. For the first time, a chemist hired by the defense was allowed to analyze the shorts. He tested threads from all ten rust-colored areas—and found that the stains were paint. He found "no traces of human blood." The state contended that "everybody" knew about the paint at the trial.

When Miller's case eventually reached the Supreme Court, Justice Potter Stewart said that the state's contention was "totally belied by the record." Stewart pointed out that the prosecutor plainly implied at the trial—and the jury believed—that the shorts were encrusted with only one substance, the child's blood. Yet even if there was blood on the shorts, there was little evidence to connect them with the crime and none whatsoever to connect them with Miller.

Last week Ramsey still insisted that there had been blood on the shorts, while conceding that "perhaps" he had made "only one mistake"—not telling the jury about the paint, which he admitted he knew all about during the trial. Indeed, Ramsey kept quiet about the paint for most of the decade that Miller spent on death row for a murder that remains unsolved.

Rare Approval

What is the reckoning for a prosecutor who knowingly uses false or misleading evidence to help gain a conviction? Usually nothing. All the same, many lawyers across the country are urging professional action against Fellow Lawyer Ramsey, who is now a trust officer for a central Illinois bank. Last week the Illinois Bar Association grievance committee scheduled the matter for consideration April 1. If a bar association believes a lawyer guilty of unethical conduct, it can recommend censure, suspension or outright disbarment. But a state court, usually the highest, must approve—and such cases are rare. Of the nation's 313,000 lawyers, only 86 were disbarred last year.

Over the years, the Supreme Court has reversed dozens of convictions that were based on prosecutors' dubious tactics. But such reversals commonly occur years after a prosecutor has left office, and time seems to immunize the offender. Examples:

• In 1940, Henry Napue was convicted for his alleged part in killing a policeman during a Chicago tavern holdup. Napue was fingered by one George Hamer, already serving 199 years for the crime, who testified that he had received no promise of special consideration in return for his testimony. Not until 1959 did the Supreme Court reverse Napue's conviction, ruling that the prosecutor had allowed Hamer to lie on the stand after promising to try to get his sentence reduced. No action was taken against the prosecutor.
• In 1955 San Antonio Cabinetmaker Alvaro Alcorta was sentenced to death for the murder of his wife. At the trial, Alcorta vainly claimed that he had come upon his wife and one Natividad Castilleja kissing in a car; Alcorta admitted that he then stabbed his wife to death in a fit of passion, a crime punishable in Texas by no more than five years in prison. For the prosecution, Castilleja blandly testified that he had only a platonic relationship with Mrs. Alcorta. In 1957, after Alcorta had faced execution eleven times, the Supreme Court reversed the conviction on the ground that Castilleja had actually been Mrs. Alcorta's "lover and paramour"—a vital fact of which Prosecutor Hubert W. Green Jr. was fully aware. In 1958 Green was named Texas' Outstanding Prosecutor.

There is a federal criminal law (Section 242, Title 18, U.S. Code) that carries a one-year sentence for public officials who willfully deny a person's constitutional rights. But no one has ever invoked it against prosecutors. There is a federal civil law (Section 1983, Title 42) that permits money damages for the same injury. Yet as elected officials and court officers, prosecutors are presumably immune to such civil suits. Not in living memory has any American prosecutor ever been punished in any way for falsifying or misrepresenting evidence.