“We don’t invite these type of crimes in our community,” O’Malley told cleveland.com at the end of 2019. “But when they happen, the citizens of our community have made clear that they want the option [of capital punishment].” 

But O’Malley says his position on the death penalty has changed since then, and his office hasn’t produced a new death sentence since around the time he made headlines for his zealousness for the punishment. In recent months, while campaigning for his third term in office against a progressive challenger, O’Malley has said he would limit his use of the death penalty. 

“My feelings have certainly evolved; I do a lot of self-reflection as the prosecutor,” he said during a debate moderated by the Cleveland Metropolitan Bar Association in February. “But I can tell you this: If we have a mass shooting with mass casualties? My guess is you’d probably see it again.” 

O’Malley, however, still uses the threat of this punishment to win plea deals. In November of last year, his office filed and then dropped capital murder charges against a man who pleaded to life in prison. 

O’Malley’s local critics have denounced his resistance to examining wrongful convictions, amid unrest and dysfunction in his office’s unit that’s meant to assess innocence claims. O’Malley has contested prisoners’ attempts to prove their innocence and has opposed new trials for at least two men on death row despite evidence of their innocence; one of those men, Melvin Bonnell, has a pending execution date. In several cases, he retried people despite evidence showing they were not responsible for the crimes that sent them to prison. In another, he fought against compensation for a man who wrongfully spent decades on death row. 

“There is a pattern of stonewalling the grant of relief in innocence cases, rather than fulfilling the prosecution’s duty to do justice,” said Robert Dunham, a death penalty attorney and former executive director of the nonpartisan Death Penalty Information Center. “If Michael O’Malley has had a change of heart and is rethinking his approach to death penalty cases, one of the most important things to do would be to take a look at the cases that are already in the system.”

O’Malley’s evolution on the death penalty occurred during a pause in executions in Ohio that has stretched on for more than five years due to shortages of lethal injection drugs and reprieves granted by Republican Governor Mike DeWine. His shift also follows support for the death penalty dipping to record lows within his own party. 

But the possibility that executions may resume looms over the state. The state has executions scheduled as soon as October and December this year. And Republican lawmakers are attempting to restart executions in Ohio with legislation that would authorize the use of nitrogen to suffocate prisoners to death, a method first used by Alabama in January. If Ohio’s unofficial moratorium were to end, prosecuting attorneys in the state would play a critical role in which executions proceed, as they’d be responsible for requesting execution dates in the state. 

Twenty-two prisoners from Cuyahoga County are awaiting execution, about a fifth of all people on Ohio’s death row. Four people from the county are already scheduled for execution through 2027.

Bolts sent O’Malley a list of detailed questions about his approach to the death penalty and wrongful convictions. A spokesperson wrote in an email that he was unavailable until April, after his primary election, and encouraged Bolts to talk with him then. 

O’Malley’s challenger in the March 19 Democratic primary is Matthew Ahn, a former public defender and visiting professor at Cleveland State University of Law who told Bolts he would never seek the death penalty, citing data showing that it does not reduce murder rates and costs taxpayers more money than sentencing someone to life in prison. 

Ahn also criticized O’Malley’s office over what he calls a history of ignoring evidence of wrongful convictions. “An office that doesn’t take wrongful convictions seriously is not an office that’s built for justice,” Ahn said. 

O’Malley’s critics point to the case of Anthony Apanovitch, who was freed from death row six months before O’Malley took over in 2016 after DNA evidence led a judge to overturn his conviction of raping and murdering 33-year-old Mary Ann Flynn in 1984, and order a new trial. 

Former Cuyahoga County Prosecutor Tim McGinty had challenged the judge’s decision, arguing that Apanovitch should not have been freed because of a procedural mistake; under Ohio law, the defense has to request DNA testing in order for it to be used in a post-conviction appeal, but in Apanovitch’s case, prosecutors had secretly ordered the testing without his lawyers’ knowledge. The Ohio Supreme Court agreed with prosecutors and in 2018 Apanovitch was sent back to death row, more than two years after lower courts had freed him; in its opinion, the court acknowledged that its decision might seem “unduly formalistic or unfair.” After he was elected prosecutor, O’Malley continued to oppose Apanovitch’s efforts to win a new trial, arguing that he doesn’t think Apanovitch is innocent.  

Apanovitch’s lawyers say that he should be retried so a jury can properly consider two key pieces of DNA evidence in the case: a swab taken from Flynn’s mouth and another taken from her vagina. Once the defense found out about the state’s testing, they ordered their own. A defense expert found that the swab taken from Flynn’s vagina contained DNA that did not belong to Apanovitch, an assertion that the state’s expert has not contested and formed the basis for his 2016 release. While the state claimed the other swab, from Flynn’s mouth, contained DNA fitting Apanovitch’s profile, a defense expert said it did not in fact show Flynn’s DNA—raising questions about whether it was contaminated and came from Flynn in the first place. O’Malley has cited the oral swab as evidence of Apanovitch’s guilt and opposed bringing it back into court for further scrutiny.

Apanovitch has exhausted his appeals at the state level and his case is now in federal court. Dale Baich, a former federal public defender who has represented Apanovitch since 1991, said O’Malley could still take action by filing a motion asking for the case to be retried. He could also move to vacate the conviction. 

“He has the discretion and the authority to go into court to correct this injustice,” Baich told Bolts. 

When asked about the case, Ahn, O’Malley’s challenger in the March 19 primary, declined to comment, saying that it would be inappropriate to speak on specific cases. 

In another case, O’Malley argued that Joseph D’Ambrosio, who spent two decades on death row, was not wrongfully convicted despite a judge finding that prosecutors hid exonerating evidence that contradicted their narrative and withheld information showing that key witnesses were unreliable. D’Ambrosio had sued Ohio for wrongful imprisonment and sought compensation for his time behind bars after a judge overturned his conviction and death sentence in 2010. But O’Malley stood in the way of D’Ambrosio winning compensation by opposing his claim that he was wrongfully convicted until the Ohio Attorney General’s Office asked him to drop it. Even then, O’Malley maintained that he should not be compensated. “Should people who are not innocent get money?” he told the Associated Press in June 2021. Two months later, the state ultimately agreed to pay D’Ambrosio $1 million. 

As of 2021, Cuyahoga County had sent six people to death row who were later exonerated; only Cook County (Chicago) and Philadelphia County have seen more death row exonerations. Thirty-four more people have been found to be wrongfully convicted in Cuyahoga County since 1989, according to the National Registry of Exonerations. 

Making it more difficult for people to prove their innocence, the conviction integrity unit in O’Malley’s office in charge of investigating those claims has been accused of failing to properly review cases. 

Ron Adrine, a retired judge, began working with the unit in 2018 as a member of an independent five-member advisory board that was tasked with reviewing cases and making recommendations for which needed action from prosecutors. Adrine said he came out of retirement to join that board because he thought it would be a good opportunity to reverse injustices. He expected that it would meet regularly to decide when problematic convictions needed attention from prosecutors. 

“What happened though, was that we did not meet regularly,” Adrine told Bolts. “And when we did meet, we only reviewed a very few number of cases.” 

According to Adrine, the board reviewed less than 10 cases during his first two years on it and did not convene or analyze a single case from 2020 to 2022. In November 2022, Adrine plus the other four members of the conviction integrity unit’s external board all resigned, writing in a letter to O’Malley that they were troubled by the unit’s inactivity. They wrote that an internal panel at the prosecutor’s office responsible for first examining cases then deciding whether to funnel them to the advisory board had not met in two years. 

“We are forced to conclude that the [conviction integrity unit] does not function in the manner we anticipated when we agreed to serve,” read the letter.

Even when the external panel that Adrine sat on had the opportunity to work on a case, O’Malley’s office did not always listen to its recommendation. For example, Adrine and his colleagues spent 14 months investigating the case of Octavius Williams, who was convicted of attempted murder and sentenced to 15 years in prison in 2011. They found that Williams’ brother confessed to the crime numerous times and recommended a full exoneration. 

But O’Malley disagreed and refused to declare Williams innocent. “I think in this particular case, we did the best we could. I think we did what was right… I’ve also learned that there is a growth industry of attorneys who are trying to harvest wrongful conviction claims,” Adrine told Cleveland Scene in 2020. 

O’Malley agreed to allow Williams out on supervised release while awaiting the outcome of his appeal, yet he still fought to send him back to prison. Last month, a state appellate court vacated Williams’ conviction and ordered a new trial. Judge Kathleen Ann Keough wrote that the evidence clearing Williams was so overwhelming that O’Malley should not seek to convict him again. 

O’Malley hasn’t publicly stated whether he intends to retry Williams. To date, he has retried at least three men whose convictions were vacated because of exonerating evidence, Isaiah Andrews, Kenny Phillips, and Mark Sutton. All three were then acquitted during their retrials. 

Adrine said that even when his panel flagged evidence that made them question a conviction, prosecutors still sometimes failed to share that information with defendants. “There were cases where we thought that there was some exculpatory evidence, it should have been given to defense counsel, and it appeared that there was some failure to get that evidence into the proper hands in a timely fashion,” he said. 

Asked whether prosecutors were hiding exculpatory evidence that his panel flagged from people who are still in prison, Adrine said he was not permitted to disclose more details about his work for the office. “I can only say to you, that we were concerned about that as an issue,” he said. 

On the campaign trail, Ahn has accused O’Malley of dismantling the conviction integrity unit. If elected, he plans to bring back to the external board and add a formerly incarcerated person as a member. In response, O’Malley has said the unit is operating effectively. At a debate last month, he claimed his office is more effective in helping people overturn wrongful convictions than the Ohio Innocence Project, an initiative powered by lawyers working at the University of Cincinnati.

Mark Godsey, director of the Ohio Innocence Project, disputed that claim and slammed O’Malley’s history on handling innocence cases. The Ohio Innocence Project represented Andrews and Sutton, two of the men whom O’Malley unsuccessfully prosecuted again after their exoneration. “They turned into family,” Sutton has said of the organization. 

“On wrongful convictions, O’Malley started off strong, but then went downhill quickly,” Godsey, who’s also a professor of law at the University of Cincinnati, told Bolts. “There are prosecutors in that office who are trying to do the right thing, but it seems like O’Malley himself is not one of them.”

The winner of the Democratic primary will face Republican candidate Anthony Alto in November, though Cuyahoga County leans heavily Democratic. In January, the Cuyahoga County Democratic Party declined to endorse O’Malley or Ahn at a party meeting, which local media described as a snub for the incumbent. 

O’Malley has received an endorsement from state Senator Nickie Antonio, a Democrat who is sponsoring a bill to abolish the death penalty in Ohio. The legislation, currently in committee, also has several Republican sponsors, and Antonio is optimistic about its chances. She says the effort to end capital punishment has become more urgent with the looming nitrogen bill. 

Antonio told Bolts she has spoken with O’Malley about showing restraint with the death penalty. “He definitely hears from me when I disagree with something,” she said. “I’m going to keep working on trying to get him to really shift his opinion on the death penalty for sure.”

The post In Cleveland Prosecutor’s Office, a Long Trail of Death Sentences and Wrongful Convictions appeared first on Bolts.

Cook County, home to Chicago and many of its suburbs, bears the infamous reputation as the nation’s wrongful conviction capital. The regimes of notorious, corrupt Chicago police ringleaders like Jon Burge and Ronald Watts forced or coerced hundreds of false confessions, leading to hundreds of exonerations in the years since their abuses first came to light.

Cook County State’s Attorney Kim Foxx, elected as a progressive reformer in 2016 to lead the country’s second-largest prosecutor’s office, made addressing the legacy of wrongful convictions a centerpoint of her tenure. After taking over the office, Foxx revamped its Conviction Integrity Unit (CIU), which had been launched by her predecessor, Anita Alvarez, to examine misconduct allegations or new evidence that call convictions into question. During Foxx’s almost eight years in office, prosecutors have overturned 250 convictions, almost three times as many as were overturned under Alvarez.

But the unit’s work has been overshadowed in recent months by public controversies. A former CIU leader quietly resigned in December, more than a year after defense attorneys accused her and other prosecutors of deliberately withholding exculpatory evidence for a decade. While Foxx has again tried to revamp the unit during her final months in office, a judge recently barred the unit’s new head from testifying in his courtroom over what he called a “conflict of interest” just weeks after she assumed the post.

Now, the unit and its future are again in flux. Foxx announced last April that she would not seek a third term, and the candidates vying to replace her have espoused different views of the agency and its role in the legal system. 

Clayton Harris III, a longtime government worker and former prosecutor, has promised to build on Foxx’s legacy of reforms, including her efforts to overturn wrongful convictions. Harris, who is backed by local progressive leaders and the county’s Democratic party, said he’s had meetings with the Illinois Innocence Project and the Exoneration Project about how to manage the CIU and wants to improve its operations. 

Currently, different types of cases are routed to different units within the state’s attorney’s office; when an incarcerated person files a post-conviction petition, for example, that case is handled by a member of a post-conviction unit, while cases involving innocence claims are sent to the CIU and resentencing cases are sent to the sentencing review unit. Harris says that if elected, he plans to combine those three units “so that there’s cross-pollination” among prosecutors working on similar cases.

“These are innocent individuals that were taken from their families that never should have been incarcerated,” Harris told Bolts in an interview. “So, let’s start there before anyone says another word.”

Harris’s opponent in the Democratic primary, former prosecutor and retired judge Eileen O’Neill Burke, has pledged to continue the work of the CIU if elected. But she has also come under fire for her own role in the 1994 wrongful conviction of a Black boy who was accused of murdering an older white woman. O’Neill Burke, who helped try the case, had at the time evoked the since-debunked “superpredator” myth, claiming the 10-year-old boy was part of “a whole new breed” of criminals. 

O’Neill Burke, who has pledged to roll back some of Foxx’s reforms and crack down on gun prosecutions, has remained largely unapologetic both for her role in the wrongful prosecution and her previous comments about the boy. She told the Chicago Tribune last December that his confession was “compelling evidence” while declining to answer questions about her other remarks. 

O’Neill Burke’s campaign, which has become increasingly critical of the reforms under Foxx in the days leading up to the primary, declined to make her available for an interview with Bolts but said in a statement that she supports a “robust conviction review unit.” Her campaign manager Don Black wrote that, if elected, O’Neill Burke would staff the unit with “the best prosecutors who will collaborate with other post-conviction units to share resources and improve efficiency.”

The winner of the March 19 Democratic primary will face off against Bob Fioretti, a progressive-turned-hardline conservative who, as a civil rights attorney, previously represented someone who was wrongfully convicted. Fioretti, who is unopposed in the GOP primary, faces steep odds in the November general election in the overwhelmingly Democratic county.

As the office changes hands, advocates like Joshua Tepfer say whoever takes the reins has their work cut out for them. As a civil rights attorney with Loevy & Loevy and the Exoneration Project, Tepfer has represented the vast majority of the people exonerated under Foxx. He says his issues with the office are less ideological than they are logistical. 

In an interview with Bolts, he said the office’s current setup has created some “efficiency problems.” The CIU will only accept wrongful conviction cases where a person is making a claim of “actual innocence” that’s supported by new evidence that was not presented at trial. The CIU will not review cases on direct appeal and “may decline review during the pendency of post-conviction proceedings.” Usually, those appeals are handled by the office’s post-conviction unit.  

“I don’t understand why I can’t litigate my cases if I think someone’s innocent. It doesn’t make a lot of sense to me,” Tepfer said. He supports efforts to create more collaboration across the post-conviction units, similar to the proposals from Harris and O’Neill Burke. “It should be a post-conviction and review unit and everyone who is handling post-conviction cases—whatever the case—should be analyzing them to determine whether or not we think justice was done,” he said. 

In March 2016, just days after unseating Alvarez, Foxx boarded a plane to Brooklyn, New York, to meet with Kenneth Thompson, the Kings County district attorney, and Ronald Sullivan Jr., a Harvard University law professor. Working under Thompson, Sullivan had created and led what was considered at the time to be the nation’s preeminent wrongful conviction unit, having played a role in more than two dozen exonerations in fewer than four years.

With Sullivan by her side, Foxx charted an overhaul to Cook County’s CIU. One of Sullivan’s chief recommendations: The unit’s leader should be an outsider, particularly one with criminal defense experience, and insulated from the cases that came before them. To lead the wrongful conviction unit, Foxx tapped Mark Rotert, a defense attorney of nearly two decades and a former federal prosecutor. By the time he resigned two years later, Rotert had overseen the office’s first ever mass exoneration, in which cases for 15 defendants with connections to cops under Watts’s command were tossed out because the office concluded it couldn’t trust information provided by police. 

The CIU’s independence from the rest of the state’s attorney’s office didn’t last long, however. As Rotert’s successor, Fox selected a 23-year veteran of the office named Nancy Adduci. In addition to Adduci’s new role managing the wrongful conviction unit, Foxx allowed her to stay on as prosecutor in a trio of cases stemming from the murder of Clifton Lewis, a Chicago police officer who was shot in December 2011 while working off-duty as a security guard at a West Side convenience store.

Days after the shooting, police charged Tyrone Clay and Edgardo Colon, members of the Spanish Cobras street gang, with Lewis’s murder. By February 2012, the CPD had joined forces with federal law enforcement for a dragnet investigation they dubbed Operation Snake Doctor, intended both to build a case against a third suspect, Alexander Villa, and to neutralize the larger street gang. Colon, the alleged getaway driver, was eventually convicted of murder in 2017, but his conviction was thrown out in 2020 because an appellate court found that police questioned him after he repeatedly asked for a lawyer. Clay spent more than a decade behind bars awaiting trial, fighting to have his confession tossed out. Villa was convicted in 2019, but waited years to be sentenced while he pushed for a new trial.

Then, in fall 2022, one of Villa’s defense attorney’s subpoenaed the CPD and obtained a trove of records that cast a shadow over Adduci’s handling of the cases. Among 35,000 pages of internal police emails and attachments turned over was evidence that, as early as 2012, Adduci and Andrew Varga, another Cook County assistant state’s attorney, used private email addresses to communicate with investigators, shielding the documents from requests under Illinois’s open records law. In one email, officials discussed unreleased evidence that showed none of the three men charged in the killing were near the store at the time of the shooting.

Foxx pulled Adduci and Varga from the case in January 2023 and prosecutors dropped all charges against Clay and Colon that June—shortly before Adduci, Vargas, and former CPD superintendent Gary McCarthy were to be questioned under oath about their failure to turn over evidence. Villa, meanwhile, was sentenced in August to life in prison, after the judge in his case repeatedly rebuffed defense attorneys’ requests for a new trial.

At best, Adduci’s behavior gives a “terrible appearance of impropriety,” said Rachel Barkow, a law professor at New York University who studies the administration of criminal law. “At worst, you have somebody leading the conviction integrity unit who should’ve themselves been reviewed for the integrity of their own convictions.” 

The person who leads the CIU should be “beyond reproach,” Barkow said, “and it appears that’s not the case here.” She said that the head of a wrongful conviction unit should not also be prosecuting cases. “Who’s gonna review her cases?” she asked.

Amid the fallout, Foxx in December announced another shakeup. After overseeing more than 180 exonerations, Adduci was replaced as head of the CIU by Michelle Mbekeani, senior policy adviser to Foxx and former staff attorney at the Shriver Center on Poverty Law. The newly rebranded Conviction Review Unit would “operate under the principle of participatory justice” by engaging with community members and criminal justice advocates, Foxx’s office said in a press release. 

Less than a month after she was replaced, the Chicago Sun-Times reported Adduci was “no longer with the office.” A spokesperson wouldn’t say whether she resigned or had been fired.

Mbekeani’s time in the unit, meanwhile, has been no less turbulent. The day after Foxx’s rebrand of the unit, a website linked to a local right-wing operative’s network of fake newspapers posted a story accusing Mbekeani of running a “side business” that connects incarcerated people with innocence claims to attorneys. Mbekeani has said that her company, called Period, was a class project and never a real business, however University of Chicago press releases and blog posts show it received $75,000 in seed funding.

During a resentencing hearing in January, a Cook County judge called Mbekeani’s involvement in the venture a “per se conflict of interest” and removed her as prosecutor on the case. The judge also called Mbekeani’s answers to his questions about her involvement in Period “duplicitous, incomplete, evasive and untruthful,” and banned her from appearing on “any other case assigned to this courtroom.”

“I don’t see how there’s a conflict there,” Barkow said. It would only be problematic if Mbekeani were “involved in getting people counsel for cases before her.”

Fioretti, the Republican candidate for state’s attorney, called Mbekeani an “activist” whose job is “second-guessing prosecutions,” in a press release. “No one wants to put innocent people in prison,” the release said, “but the best way to stop that from happening is to do a thorough job as a prosecutor.” 

During his distinguished career as a civil rights attorney, Fioretti once questioned whether the state’s attorney’s office could even fairly handle innocence claims. In the early 2000s, his client, LaFonso Rollins, was exonerated after more than a decade behind bars; Rollins ultimately settled a $9 million–wrongful conviction lawsuit with the city in 2006. That same year, Fioretti called for a special prosecutor to probe Rollins’s case. 

“We do not believe the Chicago Police Department or the state’s attorney’s office can be impartial,” Fioretti said at the time.

Tepfer, the civil rights lawyer, said prosecutors now seem more aware that wrongful convictions happen due to police misconduct after years of abuses coming to light. Foxx made it a priority to address some portion of the innocence claims that have surfaced in recent years, particularly around the scandals involving police who coerced confessions.

But preventing wrongful convictions and reforming the conditions that lead to them requires a larger cultural shift inside the state’s attorney’s office, Tepfer said. “It’s gotta be foremost on any candidate’s agenda,” he said. “It has to be a policy—or something that is trained throughout the office—to question cases and scrutinize cases as they come in, whether it’s through current cases and charges or it’s through a review of old cases.”

The post Leadership Scandals Surround Chicago’s Wrongful Conviction Unit appeared first on Bolts.