Wednesday, November 16, 2011

'How to curb rogue prosecutors,' or, 'The gathering clouds'

Grits linked the other day to a Dallas News editorial (behind paywall) published over the weekend (Nov. 12) titled "How to curb rogue prosecutors" which opened:
One thread running through many criminal exoneration cases in Texas involves prosecutors who failed their legal and moral duty to justice and fair play.

Too many of them appear to have been more interested in winning a conviction than airing the whole truth, even at the expense of someone’s liberties.

Lawmakers need to unravel these tangled messes, then find ways to build safeguards against willful or sloppy miscarriage of justice in a district attorney’s office.
Notably, to solve this problem, the News offered three suggestions: A statutorily mandated "reciprocal discovery procedure" where prosecutors must open their files to the defense, improved training (la de da), and most intriguingly, creating state-level civil liability for extreme prosecutor misconduct:
Finally, though a prosecutor can be criminally charged for misusing his position, an individual who is railroaded by a crooked DA has no access to state courts to pursue civil claims.

Legislation was filed this year to provide that access and limit a prosecutor’s immunity, but the bill went nowhere, with no debate. Lawmakers should take another look, give the matter their full attention and hear pros and cons.

The vast majority of prosecutors are honorable public servants and should not have to look over their shoulders in fear of nuisance suits. That could drive them out of the profession.

But there are outliers in any occupation, and they should not be immune from accountability.
The bill they're talking about was Rep. Lon Burnam's HB 2641, which, as described in this Grits post, would have provided a "a state-level remedy to federal judicial activism" which created the doctrine of "absolute immunity" for prosecutors whole cloth with no statutory basis whatsoever. If you're really and truly "fed up" with the federal judiciary from a state's rights standpoint, this should be a cause you can get behind: It's the ultimate snub, asserting Texas' rights as a state over decades-old federal judicial fiat. Framed thusly as an expression of 10th Amendment state's rights, I see no reason why such legislation couldn't garner bipartisan support, even if it rankled a lot of prosecutors along the way.

Such ideas seem dangerous and heretical to career prosecutors. But we live in a moment when folks in the Tea Party, the "occupy" movement, those groups' respective fellow travelers, and wide swaths of unaffiliated but alienated voters are fed up with the status quo and potentially open to "dangerous and heretical" ideas. At their user forum, the District and County Attorney Association lobbyist pointed to the Dallas News editorial under the headline, "The gathering clouds." They can see the storm coming.

In many ways, tackling prosecutor (and police) misconduct remains among the lasts frontiers where criminal justice reformers have made little progress. A lot of the early legislative goals of the innocence movement in Texas have been met. Post-conviction DNA testing was established, then expanded. Eyewitness ID legislation was passed and Texas courts are reexamining eyewitness evidence. Corroboration was required for jailhouse informant testimony and undercover drug snitches. Texas now has the most generous compensation package in the nation for exonerees. New standards are being created regarding biological evidence preservation.

Certainly the task is far from complete. I'd still like to see police required to record interrogations, and in light of recent rulings at the Court of Criminal Appeals, Texas' writ law needs tweaking so that defendants can seek habeas relief not just based on new evidence but also new scientific findings that discredit old evidence. Thousands of old, untested rape kits discovered at police departments around the state should be vetted not just for who they might help convict but also who might be exonerated. The Forensic Science Commission's jurisdiction is too constricted and needs to be expanded. With the notable exception of arson cases, no official body has begun to systematically vet bad forensics in old cases. (For example, there's been no official examination of cases where people were convicted based on since-discredited testimony by dog-handler Keith Pikett in so-called "scent lineups.") There's still a lot to do.

But at least on all those issues, what needs to be done is fairly straightforward. Prosecutor misconduct has been among the toughest nuts to crack, in part because there's a paucity of ideas for how to effectively rein it in. To say the state bar has been ineffective on the topic would be generous. (I've heard it said they've been "complicit," which is closer to the truth.) Complicating matters, prosecutors enjoy disproportionate power both in local politics and at the Lege.

There's a little time - not much, but a little - to figure out the best approach to confront prosecutorial misconduct in the current political environment before the 83rd Texas Legislature is upon us. See Grits' greatest hit list of ideas on possible legislative solutions to prosecutorial misconduct, and let me know what other clever suggestions you come up with, in the comments or via email. There's bound to be a way to skin this cat that'll satisfy everybody across the political spectrum, or at least everyone who's not just fundamentally against cat skinning in the first place.


Arce said...

One suggestion: A public defender's office in each jurisdiction, with the ability, prior to indictment of anyone, to examine all of the evidence being collected by the police, observe interrogations, and depose police officers under oath, and to share these results with the defense counsel and the court.

Anonymous said...

(cough) Dale Lincoln Duke (cough)

May 4, 2008 -- Dallas Morning News (TX)
Dallas County District Attorney Wants Unethical Prosecutors Punished
By Jennifer Emily and Steve McGonigle, The Dallas Morning News

The Dallas County district attorney who has built a national reputation on freeing the wrongfully convicted says prosecutors who intentionally withhold evidence should themselves face harsh sanctions possibly even jail time.

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."
Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.
John Bradley, the district attorney for Williamson County near Austin, said taking criminal steps against prosecutors, even when they intentionally withhold evidence, is a "ridiculous step" and an "overreaction."


Anonymous said...

Okay, Grits. I'll bite. The Attorney General's office defends state judges when they're sued. Who will defend prosecutors--both elected and assistants? Most prosecutors who are decent trial lawyers could easily double their salary in the private sector. They make the "trade" for the regular work hours, government benefits and, yes, not having to purchase E&O coverage. Will the counties bear the cost of coverage? How much will it cost? Even the frivolous suits will have to be defended which will place prosecuting attorneys in a "high risk" category. Do you have any idea how many inmate lawsuits are filed annually that the AG has to defend? I'm not suggesting there can't be some waiver of immunity, but there will assuredly be a cost to someone--most likely taxpayers. It's easy to get caught up in the current media scrutiny over prosecutor misconduct or mistakes. But seriously, what will the real world consequences be?

DEWEY said...

Perhaps the unethical prosecutors should serve as much prison time as their victims. Day for day. Stacked. But then again, I'm a dreamer.

john said...

There does need to be civil penalties--ways to sue civilly. It's too easy for those experienced in law, esp. criminal law, to go way overboard--yet just short of crime.
But then I'd hope just the minority of D.A.s would do anything bad, don't know---and these days abuse is growing. The Feds have set such an example of abuse, neglect sophistry & terrorism against citizens; I suppose it's natural some more-local folk want to get in on it. So maybe it's the "national" moral fiber unraveling? Chaser lawyers file plenty frivolous civil suits; why not citizens? Courts should not go along with it, just so they can get paid, too. And as the economy collapses, folks are more desperate--more likely to cheat. Those in power can cheat more effectively.

Anonymous said...

7:26, the "sky will fall" rhetoric is always rolled out when this issue is brought up.

First, even if prosecutorial immunity is scaled back, prosecutors would still have qualified immunity. Police officers and other government officials currently have qualified immunity and yet, somehow, we are able to find plenty of people that want those jobs. I suspect that scaling back absolute immunity to qualified immunity would not cause a single prosecutor to quit his job or discourage anyone from becoming a prosecutor.

As far as who will defend them. That would work the same way it does for police and other government officials. While an official may be sued individually, these type of suits are considered suits against the officials office. Therefore, either the state of the county (I'm not sure which) would defend them. The answer to this question would be the same as the answer to who would defend an investigator in the DA's office who was sued for ex
excessive force. These issues are not near the problems you want to make them out to be.

As far as a torrent of frivolous lawsuits: Yes, there would be a few more, but, as I said, the police and other officials currently have only qualified immunity and yet, they are not paralyzed by a torrent of lawsuits, are they? There are built in safeguards in the system. Qualified immunity is a very high hurdle to get over and with that, many even meritrorious suits are screened out at the summary judgment stage. So,under qualified immunity, the risk to a prosecutor from frivolous suits is really very minimal. Prosecutors would still be able to get away with some misconduct under qualified immunity, just a police do now.

Cops are required to make split second, life or death decisions, yet we only afford them with qualified immunity. Why? Think about what it would be like if they had absolute immunity. Yes, you would have some who would still obey the law and do the right thing. But, you would have many, who, knowing there would be no consequences for their actions, would step all over citizens rights and abuse people with impunity. Isn't that is what is currently being done by many prosecutors because of absolute immunity? Absolute immunity corrupts absolutely. If qualified immunity is good enough for police officers who make these split second decisions, it should be good enough for prosecutors who have time to deliberate about their actions.

If prosecutors don't want to lose their absolute immunity, they need to take action to address the rampant misconduct by their colleagues. They need to demand that the state bar start aggressively discipliing prosecutors. They need to start prosecuting their own when their actions are criminal. They need to be willing to speak out against those prosecutors who engage in misconduct. They need to stop fighting to maintain convictions where there has been clear and egregious misconduct. Prosecutors will have only themselves to blame for losing their absolute immunity. They have miserably covered for their own.

If you are afraid the sky is going to fall if you lose your absolute immunity, you better start doing something about the problem. Just spouting off the "sky is falling" mantra doesn't wash.

I suggest you go read the transcript of the recent Supreme Court argument in Smith v. Cain. Its obvious that the patience of at least some Supreme Court justices is wearing thin on this issue. I think, even they will only tolerate so much of this stuff.

Lee said...

The lowest pits of hell are not enough for john Bradley

Anonymous said...

@10:56--You think "many prosecutors" are stepping all over the rights of citizens and engaging in "rampant misconduct?" Really? Wow!

Anonymous said...

11:31, that's not just what I think. The numbers prove it. If I get some time later today I'll post the sources. Prosecutorial misconduct has been referred to as an "epidemic" and there are studies and statistics that bear that out.

Anonymous said...

You're exactly right, 12:17. I know lots of prosecutors who have nothing better to do than sit around looking for ways to convict the innocent. They do that because they're bored. You know why they're bored? Because there really isn't any crime in America. That stuff you see on the six o'clock news about murders, robberies, rapes, etc.; that's all propaganda perpetrated by a media that's complicit with cops and DA's. Those people who claim to be victims? Mere figments of your imagination. People don't really go down to the police station and claim to have been victimized. That too, is a myth. Police investigations just materialize. Kind of like spontaneous combustion. And cases don't really get turned over to the DA's office by the police to be prosecuted. Those DA's have to go out and create them. They sit around all day thinking: "what poor innocent sap can I trump up some bogus charge on today?" Rampant misconduct, I tell you. Rampant!

Anonymous said...

I would encourage the public to attend some suppression hearings. Most are open to the public. In most cases you will hear amazing stories, hardly believeable in the real world. The prosecutors are often withholding evidence and know the police are lying. However, if there is nothing to directly contest the story, it flys. Reality is most Judges are ex prosecutors and will listen to these "fairy tales" and buy them. The appeals process is a joke. Reading thru some "opinions" the appeals court typically defers judgment to the trial court. The percentage of overturned rulings is apallingly low. Reality is no one cares until it affects them directly. Attend a suppression hearing or read some transcripts. The press would do great service to the community by publishing or attending some of these chirades... AND this type of behavior grows on success and easily gets extrapolated byond suppression to the point justice has nothing to do with the truth. The solution starts at the beginning, grass roots...

Anonymous said...

My 12:32, do we have a bee in our bonnet, or what?

Could it be that this issue strikes too close to home for ya?

John K said...

Lots of misconduct never comes to light because of the ole trial penalty/"failure to accept responsibility" ambush.

Take a plea deal (guilty or not) or risk doing an ungodly number of years behind bars for putting the system to the annoyance of a trial.

Complain about being railroaded into taking a plea deal and your resulting failure to accept responsibility means you can lose the plea deal and (having confessed) end up doing the ridiculously long stretch.

It's a conviction system, not a justice system. Actually it's a turkey shoot.

Anonymous said...

12:32, continuing to deny there is a problem, is not going to help fix the problem. As they, the first step is to admit you have a problem. If prosecutors continue to ignore/deny the problem, they will lose their absolute immunity. But, that's okay, because they should. Even the honest prosecutors are to blame because they have failed to act. Just consider the fact that many prosecutors who have been known to have committed significant misconduct have received "prosecutor of the year" awards. So, even the honest prosecutors have encouraged misconduct. The system you work in, 12:32, is about holding people accountable...don't you think its time to hold prosecutors accountable?

Arce said...

There are many cases where the police grab a possible culprit (spouse of a murder victim is the usual one) and build a sufficient case to convict by skewing the evidence (ore even manufacturing some if the evidence is weak -- experts think that was done in the OJ case -- and that is not a comment on whether he was guilty or not). Then they bury any contradictory evidence. Setting up a bad line up or photo lineup. Getting a jail inmate to say the guy told them he did it, etc. These are all tactics that happen more than they should, and in many cases, with some knowledge by the DA or ADA involved, if not their complicity. It is cheaper and simpler, and has more political payoff, than holding off on prejudging the case until all the evidence available can be weighed and all potential suspects considered.

Arce said...

There are many cases where the police grab a possible culprit (spouse of a murder victim is the usual one) and build a sufficient case to convict by skewing the evidence (ore even manufacturing some if the evidence is weak -- experts think that was done in the OJ case -- and that is not a comment on whether he was guilty or not). Then they bury any contradictory evidence. Setting up a bad line up or photo lineup. Getting a jail inmate to say the guy told them he did it, etc. These are all tactics that happen more than they should, and in many cases, with some knowledge by the DA or ADA involved, if not their complicity. It is cheaper and simpler, and has more political payoff, than holding off on prejudging the case until all the evidence available can be weighed and all potential suspects considered.

PAPA said...

Boy this guy really lives in a world of injustices, maybe he created the problem and doesn't want to pay the price for his wrongs.This statement says a lot more than what is written here because Williamson County is known all over Texas for the Corruption, guru wrongful convictions, and excessive charges and time to prison.He is outright saying it is okay to corrupt the justice system, to not to uphold The Constitution/Bill of Rights that HE takes an Oath to do so. Hopefully the Williamson County Voting Taxpayers have seen this statement and get this criminal out of office by voting him out (how many taxpayer dollars has he cost the county in wrongful prosectuions, prison cost, jail cost, legal fees not to mention the numerous lives he has destroyed.) He is more corrupt if not more so than those he prosecute!He is supposed to uphold the law, not promote injustices.what he said... "John Bradley, the district attorney for Williamson County near Austin, said taking criminal steps against prosecutors, even when they intentionally withhold evidence, is a "ridiculous step" and an "overreaction".Williamson County Voters, Taxpayers, take this crook out of office! He needs to go home so he has times to do some soul searching.Pass the puke bucket.Judges need to be hired on there education and job performance, apply for the job, no more appointments, no more ladder sliding into a judge job from the prosecutors office/district attorney/attorney general.Get a degree in judgeship then hire out is the best way to shut down the prosecutorial misconduct.If you have been a District Attorney you cannot hold a judge job, it is not "FOR SALE".Ask the District Attorney how many cases this year were plea bargains and how many went to trial, this will reveal a lot to the voters who care about the wrongs of the criminal justice system and the voters that want the courts returned to upholding the Constitution/Bill of Rights.Fair game time is over, the voting taxpaying citizens are sick of the out of control monster America Industrial Prison System that has been created to destroy lives, families, and excessive taxing dollars to support "The INJUSTICES" of out of control mafia guru gangster politicos,legislators,public officials,law enforcers, attorneys, judges, prosecutors, district attorneys,they should be prosecuted under the RICCO ACT for organized crime it calls for life in prison.