a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.I wish Mr. Kepple had revealed his view that new laws won't fix ethical lapses many years ago. If he had, maybe Texas wouldn't now have more than 2,400 felonies on the books, including most recently a new 3rd degree felony for misrepresenting the size of a fish. But let's set aside for now Kepple's new-found and likely short-lived skepticism that changes in criminal law are capable of altering undesirable behavior. On the assumption that the Legislature is not completely impotent to address the problem, what steps might be taken to reduce prosecutorial misconduct?
“If somebody didn’t play fair back then,” he said, “I’m not sure exactly what law we change today to address it.”
In this writer's view, the best, simplest fix would be to to eliminate "absolute immunity" for prosecutors. While Texas legislators can't overrule federal court decisions ("absolute immunity" exists in no statute but is a judicial creation from the US Supreme Court), the Lege would have to create it's own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last session which would do just that in reaction to the Anthony Graves case. (See Grits' coverage of the legislation.)
There was a committee substitute offered on that bill that would have given prosecutors "qualified immunity," which is the same as for police officers, instead of eliminating immunity entirely. Personally I'd prefer no immunity - the same standard under which defense attorneys operate. Cops' get qualified immunity - which still protects them from virtually all civil liability - because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn't be held liable in civil court even for egregious, intentional misconduct and that there is no "free-standing due process right not to be framed."
One of the boldest ideas I've seen came from Dallas DA Craig Watkins, who at one point proposed criminal liability for Brady violations by prosecutors. That would certainly turn around the incentives for win-at-all-costs prosecutors who currently have little disincentive beyond their own, personal integrity to avoid cheating to win.
Yet another possible solution I'm gravitating towards: The problem with, say, prosecutor-turned District Judge Ken Anderson in the Morton Case is that the statute of limitations on grievances against lawyers is only four years, so no matter how bad his misconduct the State Bar can't touch him. Grits would like to see the statute of limitations on Brady violations begin to toll when the concealed information is discovered, not at the time of misconduct as is currently the case. Indeed, when Craig Watkins suggested criminal sanctions for prosecutors withholding evidence, ironically that's the fix Williamson County DA John Bradley preferred! The Dallas Morning News reported (no longer online) that while Bradley considered criminalizing Brady violations "ridiculous," he did not argue against "changing state bar rules to allow grievances to be filed when they are discovered rather than within four years of the alleged misconduct, as currently required. There is no recourse when Brady violations are discovered decades later," reported the News.
That makes loads of sense to me. The whole problem with "Brady" violations - i.e,. prosecutors withholding exculpatory evidence - is that if they conceal the evidence, nobody knows to file a grievance against them. In the Morton case, the statute of limitations on Judge Anderson's alleged misconduct should begin tolling from 2008 when the hidden, exculpatory evidence was discovered, not from 25 years ago when the apparent conspiracy to conceal that information began. Ditto for John Bradley who, as the Trib mentioned, "resisted efforts by Morton’s lawyers to use public-information laws to gain access to evidence in the original prosecutors’ files."
Another rather minimalist but potentially powerful idea: make courts actually name prosecutors responsible for Brady violations or other misconduct in their rulings. Right now when courts find Brady violations, court orders do not name the lawyer who withheld the evidence so it's impossible without monumental research efforts to figure out who was responsible. To get an idea of what's required to uncover prosecutorial misconduct, see the methodology from this one of a kind report (pdf) from California by the Veritas Initiative in California on prosecutorial misconduct to see how difficult it is right now to even gather that information. (They found that out of 707 cases where courts found misconduct, only 6 prosecutors were disciplined by the state bar, which is 5 more than we've seen in Texas over the same period.) California's court information structures and ours are similar on this score, and the exact same method would be required to identify Brady-violating prosecutors here.
A report by the Justice Project ("Improving Prosecutorial Accountability: A Policy Review," no longer online), suggested these reforms:
States should require that prosecutors’ offices adopt and enforce clearly defined policies on the appropriate use of prosecutorial discretion.Of suggestions from the Justice Project, Grits views mandating an "open file policy" as a major, positive step, but the others strike me as feel-good approaches that wouldn't do much in practice. Prosecutors in Texas have fought legislation to mandate an open-file policy tooth and nail, arguing that they'll only agree to it if defense attorneys are required to open up their files as well. (The difference, of course, is that defendants have a 5th Amendment right against self-incrimination, while prosecutors are required to seek justice, not convictions.)
States should adopt open-file discovery in criminal cases, increasing the transparency of the criminal justice system and reducing the risk that prosecutors will withhold evidence from the defense.
States should effectively respond to misconduct by establishing prosecutor review boards with the power to investigate and sanction prosecutors.
States should require that all prosecutors participate in training and continuing legal education.
Finally, perhaps as or more important than any of the above reforms would be simply to re-invigorate Texas' open-records statute so non-lawyers can access more law-enforcement information without going to court. In the Morton case, exculpatory evidence was found via the Public Information Act in 2008 instead of through discovery, and that's how a lot of Brady violations are discovered, often years after the fact.
Twenty years ago, Texas had the first or second strongest open records law in the country on police records, but first the Texas Supreme Court then the Lege completely gutted access to law-enforcement records under the Public Information Act in 1996-1997. In recent years state Rep. Harold Dutton has been carrying a terrific bill to change the law back to the Jim Mattox-era Attorney General interpretations that the Lege and courts overturned in the '90s. As a practical matter, that might be the best way to expose prosecutors withholding exculpatory evidence, essentially crowd sourcing the task to interested parties around the state who file thousands of open records requests with law enforcement and DAs offices each year. That won't hold prosecutors accountable, per se, at least in the sense of punishing them, but it's probably the best way to ensure more exculpatory evidence is eventually found. Now that access to such records in Texas has been gutted like a fish, Florida's statute is probably the best-in-the-nation example of what open-records law should look like for law-enforcement in a free and open society.
That's pretty much the array of reform ideas I've come across, but Grits welcomes reader suggestions for other approaches that might get at the problem from creative or unexpected angles. There's more than one way to skin this particular cat and only now - thanks in large part to the Anthony Graves and Michael Morton cases - are policymakers in Texas beginning to seriously discuss exactly how the Legislature might go about reining in over-ambitious prosecutors who are willing to cheat to win.
RELATED: State Bar should sanction prosecutor from Michael Morton case but almost certainly won't.