Thursday, December 29, 2011

'Justice and Prosecutorial Misconduct'

Today's New York Times includes a staff editorial focused on Judge Ken Anderson's role in Michael Morton's false conviction out of Williamson County. Opined the Times, "While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction." They acknowledge, though, that it's a test that's been long-ago, many-times failed, as "bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors."

The Times recommends that "Courts should more closely supervise prosecutors by using pretrial conferences  where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties." Criminal sanctions, to me, though, are mostly pointless because there's no one except the DA's offices themselves with jurisdiction to prosecute such cases and no incentive for them to do so aggressively. OTOH, I like the pretrial conference idea, and will henceforth add that to the grab bag of suggested legislative solutions which Grits has been compiling on the subject.


Anonymous said...

For what it's worth, many prosecutors already disclose either in open court and on the record what, if any, Brady material exists. Alternatively, they file an itemization with the clerk of the court listing such. It's just a good practice and it prevents many post-conviction Brady type claims from ever being asserted.

The more difficult issue in regard to any potential remedy or sanction for prosecutors is the sometimes subjective nature of Brady material and, in addition, how to insure that the prosecutor actually knows of the existance of potentially exculpatory evidence. What is determined to be Brady material years after the fact, is not always so apparent during an investigation or at the time of trial. There is no reciprocal discovery in Texas so, many times, a prosecutor will not know what the defense being asserted is until the time of trial.

The other problem, as noted above, is how to insure that potentially exculpatory evidence is made known to the prosecutor. As difficult as it is for prosecutors, and the courts, to recognize Brady material, it's even harder for law enforcement officers. In major investigations, where you have information being communicated to multiple investigative agencies, and multiple personnel within the same agency, it is not at all uncommon for evidentiary "tidbits" to not be properly identified in reports. This can include crimestoppers tips, information relayed to dispatchers, just to name a few. As much as some people want to believe that the D.A. is in control of all of his/her county or municipal law enforcement agencies, this is simply not the case. Reconstructing what information was relayed to who, and when it was relayed, is not always easy especially if it's not properly documented. This is even more of a problem years after the fact when memories have faded.

None of this is to excuse what appears to have happened in Morton which seems to be a real tragedy with terrible facts. But there's an old adage in the legal profession that "bad facts make bad law." I'm a little concerned that may be where we're headed in the fallout from Morton.

Anonymous said...

9:12, you say you aren't attempting to excuse what happened in the Morton case, yet you are attempting to excuse the regular, DELIBERATE, INTENTIONAL, prosecutorial misconduct that has beocme an epidemic. Most of your assertions simply don't hold up to the reality of the problem. In case after case after case after case we have seen that prosecutors have made deliberate decisions to withhold material that is unquestionably exculpatory under Brady. The facts belie your attempt to characterize this as a rare problem that is often unintentional. As far as prosecutors not knowing about exculpatory evidence, I'm sure that happens sometimes but we have case after case after case after case showing that evidence that prosecutors knew about was withheld. Morton is not an unusual case. It exemplifies a common practice among many prosecutors. Intsead of it being the rare exception you attempt to portray it as, it is the tip of a very large iceberg comprised of intentional, deliberate misconduct that occurs every day in prosecutors offices throughout the country. There are studies and statistics that prove this to be the case.

I suspect you are a prosecutor. As long as prosecutors continue to deny the true nature and extent of the problem, its just going to get worse. Prosecutors like you need to have the integrity to step up and acknowledge the problem and call for tough sanctions on your unethical colleagues. Its because prosecutors have failed to police their own that this is such an extensive problem and drastric remedies have become necessary.

Because the behavior we are talking about is an intentional and deliberate violation of the law, ethical rules and constitutional rights, I agree with the idea of criminal sanctions. If it were anyone else not associated with the prosecution or law enforcement, engaging in behavior that is so clearly egregious and deliberate, prosecutors would be calling for tougher criminal laws. They do it all the time. But, when it is prosecutors who are intentionally and deliberately violating the law, they want a pass. As far as who would prosecute, require the AGs office to have a type of omsbudsman who would be responsible for prosecutions. And, judges should be required, by law and by the Commission on Judicial Conduct, to report instances of deliberate misconduct that come to their attention.

As far as the difficulty of knowing what material is exculpatory..that's a red herring. As I said, we know that time after time after time, we have seen deliberate withholding of unquestionably exculpatory material. But, I recognize there could be times when it is not so clear. I think the recommendation regarding a pretrial hearing envisions the prosecutor listing all the evidence, including that which they may not believe to be Brady material. That way the judge can make the call and the defense at least has some notice that additional evidence exists. Or, here's a thought, simply disclose everything. What is the argument for withholding anything? If prosecutors had a true open file policy, everything would be out in the open, wouldn't it? And, this should apply to police also. The defense should be able to inspect every piece of evidence in the possession of the prosecution AND police.

Despite the previous poster's attempts to minimize the problem and make excuses for prosecutors who engage in deliberate and intentional misconduct, this is an extensive, common, and serious problem. Its time for prosecutors to acknowledge the obvious and join in looking for a solution.

Anonymous said...

We all know nothing will happen to discourage the wide-spread practice of prosecutor misconduct until someone kills a prosecutor and his family. Then legislators will rush to enact laws. Say what you want, but you know I am right.

Arce said...

I still believe that the solution is to put a legally trained person in place with authority to review prosecution files, observe investigators during the investigation, etc. This person could be selected and employed by the court(s) in the district, or by a state agency. The mission would be to ensure that there is no rush to judgment by the investigators regarding who may or may not be culpable and to ensure that all of the information and evidence gathered is available for preservation and review by the defense. It would be sort of an ombudsperson role. It would help if the person has some scientific background or training. There should be at least one such person in every district where a felony court exists, perhaps several in the larger municipalities.

The cost can be justified on the basis that the government must not find itself in the position of convicting innocent people by the government withholding evidence or failing to collect the evidence. And the ultimate employer in the state is the public through the legislators, who can get such a system into place.

Anonymous said...

Arce's idea above sounds good on paper. But, I fear that in reality, this third party oversight will only side with the prosecutor, and turn a blind eye to the well-being of the defendant. I'm reminded of a case I was a party to before the Texas Public Utilities Commission against Southwestern Bell. We were just little fish in the pond with our complaint against the mighty SWB, but it just made matters worse when the Commission's third party "representative for the people" constantly kept sabotaging us, and siding with SWB over the issues. Two judges later, we did get a favorable ruling in the case, although the "third party" made it that much harder to prevail.

Anonymous said...

Related to the question of who would prosecute these people, it seems to me that there is very little prosecution of public corruption in Texas. I believe that the AGs office have some prosecutors who, among other duties, are designated to do such work, but it is rarely done. Maybe someone needs to ask Gregg Abbott why that is. We know that public corruption is commonplace in the state. It appears that the state of Texas tolerates, maybe even condones, public corruption through its almost total lack of prosecution. Power with no accountability is a dangerous thing.

Anonymous said...

“The Prison Industrial Complex" is the title of a recorded 1997 speech by social activist Angela Davis. Davis also co-founded the prison abolition group, Critical Resistance, which held its first conference in 1998.

She wrote an article entitled “Masked Racism: Reflections on the Prison Industrial Complex,” published in the Fall 1998 issue of ColorLines. “Homelessness, unemployment, drug addiction, mental illness, and illiteracy are only a few of the problems that disappear from public view when the human beings contending with them are relegated to cages,” Davis says. “Taking into account the structural similarities of business-government linkages in the realms of military production and public punishment, the expanding penal system can now be characterized as a ‘prison industrial complex'"

GalvestonLawyer said...

Start putting some of those bastards in prison and you'll see prosecutors start playing by the rules. John Bradley and Ken Anderson should be locked up. Period.

GalvestonLawyer said...

Start putting bastards like John Bradley and Ken Anderson in prison and this problem will self-correct.

Phillip Baker said...

The original poster seems to be a professional, conscientious person, most likely a prosecutor. There are some good ones still. But I have to agree with the rest of the posters- this abuse is endemic to the Texas criminal justice system. I am just one small guy, yet in the last 2 years I have known 4 cases in which the DA coerced a plea bargain (to get around having to comply with state law about concurrent sentences) or hid evidence. DA's have far too much power and far too little oversight, and that needs to change. The ones who are wrongfully convicted suffer grave injustice. But the real perpetrator remains free to continue his evil. If Anderson/Bradley had not railroaded Mike Morton, maybe Mark Norwood would have been caught and not been free to kill Debra Masters Baker in 1988 and likely others. Those folks have much blood on their hands.