Saturday, March 31, 2012

Blackwell: Texas State Bar 'not set up to oversee prosecutors'

The Dallas Observer has an interview with Austin attorney Betty Blackwell who is a recent, former chair of the state bar disciplinary committee and participated on a panel discussion Thursday at the UT law school on prosecutorial oversight. These answers, I thought, were particularly enlightening:
Have you seen awareness of prosecutorial misconduct change over the years?

\I will tell you DNA and the fabulous work done by the Dallas D.A.'s office has really brought this to the forefront because Dallas was so conscientious about saving all of its biological material that its office has had the most exonerations. It has really come very much to the forefront that there are innocent people in prison.

Why is it that almost no prosecutors are disciplined for procedural errors or withholding evidence?

It's because the State Bar system is set up on a complaint-driven system. And one of the things we talked about at that symposium yesterday was getting judges to file complaints when they see this, getting prosecutors in their own office to file complaints against people in their own office that they've seen do this, would help the State Bar discipline these people.

And then the other issue as to why people haven't been disciplined, particularly about Brady violations, is that there is a four-year statute of limitations on all grievances. Brady never gets discovered within that four year period. So if you go online and look at Anthony Graves exoneration, and Charles Sebesta has a website -- he's the D.A. that convicted Anthony and put him on death row even though he was totally innocent. Charles Sebesta holds up the letter from the State Bar saying that they exonerated him. Well, you can read the letter. It says the statute of limitations has expired. And that's the issue. Most of these complaints on Brady cannot be brought to the Bar in a timely manner.

And so, one of the suggestions is to eliminate that statute of limitations so that the Bar can investigate these cases even though it's been many many years since it happened. There should be no statute of limitations.
She added that "the State Bar is really not set up to oversee prosecutors because we have to receive complaints in a timely manner. Well, the Bar Association can suspend these lawyers if they violate Brady -- well, not if they're not told about it, and not if they're not told about it within the statute of limitations. So they [yesterday's speakers] brought those [issues] to the public, to say the Supreme Court relied on some safeguards that are just not working."

Of Connick v. Thompson she opined that "We all believe that's an unjust opinion."

See the full interview for more.


Anonymous said...

I just looked at the linked article. I noted that she said she could not discuss private sanctions. Why is the state bar and, for that matter, the commission on judicial conduct, even allowed to issue private sanctions. These agencies need more transparecy. I don't know of any other licensing board that is allowed to issue private sanctions. Why do prosecutors and judges get special treatment?

Anonymous said...

A private sanction can be given to any lawyer--not just judges and prosecutors.

Grits, why do we have statutes of limitations for crimes and civil causes of action anyhow?

Hook Em Horns said...

"It's because the State Bar system is set up on a complaint-driven system. And one of the things we talked about at that symposium yesterday was getting judges to file complaints when they see this, getting prosecutors in their own office to file complaints against people in their own office that they've seen do this, would help the State Bar discipline these people."
The judge can be a problem also,i.e. Jack Skeen. What Texas needs is judicial oversight, an independent agency with teeth that can review odious behavior by those charged with justice.

Anonymous said...

Shouldn't procedural errors like improper jury argument or questioning be apparent in the trial record?

Anonymous said...

Prosecutorial misconduct, fabricated evidence, violating rules of discovery - These are all the techniques used to get the "bad guys" by the Smith Co. DA's office. I would dare to bet that Smith County leads the state in overturned convictions because of it. WE NEED A SMITH COUNTY DISTRICT ATTORNEY'S OFFICE THAT HAS SOME INTEGRITY SO THAT THE BAD GUYS CAN GO TO JAIL AND STAY IN JAIL.

Phillip Baker said...

That panel had people of integrity and conscience, and their ideas were worth a look. But expecting any staffer of a DA's office to file a complaint against a colleague is unrealistic. Like all small units, there is a huge disincentive to complain openly. Even if successful, the one who filed is not going to be popular. The federal prison system- for which I worked awhile- stresses professional conduct, ethics, and the duty to report misconduct hard in the 6 wk training for new hires and at every annual training after. But the second a staffer backs up an inmate's story, you are in trouble. A large portion of security then can't be relied upon for backup if you need them. You're toast as an employee, shunned by many. So much for voluntary disclosure.

We all know the State Bar is a joke, along with the Commission on Judicial Conduct. As elected officials, even the AG of the state has almost no influence. Therefore, where a DA sees the law as his own personal weapon and wields it as such, injustice is rampant and nothing can be done. Forget all the high profile cases and look at routine things. A DA who wants to convict somebody can and does bring charges against relatives of his target, to force a plea. They almost all over-charge the act in question and go for far greater penalties than warranted, then dangle a plea. Even innocent men often lie and plead guilty to avoid the risk of those trumped up charges. Everybody knows the power of the state is often far greater than even a private defense atty can beat. And god forbid you have an appointed atty. Would you risk years in prison for a crime you did not commit, if the plea protected your family and limited your damage? Many do. That's why prisons are full of innocent people who swallowed the truth of their innocence about run of the mill crimes and took the plea.

It has been my experience that justice reform happens only when influential parts of society get hit. In the 60's, prison conditions drew scrutiny when suddenly middle class young people were being jailed for pot,etc. As long as it is just those poor people affected, the wider population doesn't really care. Maybe this string of exonerations will stir action by the people with influence. One can only hope.

john said...

Well, since the Texas Senate was mostly lawyers at the time they voted in the State Bar, isn't that a conflict of interest not permitted by the Constitution, thus it's all void from the inception? You bet. Shhhhh.
And look at the "obsolete language" the Legislature tricked the people into voting out. Still, the Constitution says even repeal cannot change anything about our vested/unalienable rights. (Ha, ha, so where's my 160 acres of land?)
And nobody in power will work to give up that cush job/power. Plus a growing number of sociopaths worked their ways into high places. Nobody's more ambitious than those guys, who will do ANYTHING to "get 'er done."
Nope, could NOT get the 'captcha' on the first try. They're never even words.

Jeff said...

An independent oversight agency probably wouldn't work, Hook 'em. I say this because it will be controlled by the governor through chair and board appointments. We've seen how that works via the Forensic Science Commission, DPS, etc. If this agency could be separated from it's own government oversight, maybe. But then we're back to square one with no obligation to transparency, accountability and so on. Not too many politicians are in favor for a rogue agency that could some day actually hold the politician accountable for some past judicial transgression. But the sentiment of purpose is well understood.