Thursday, March 29, 2012

Study: Prosecutor misconduct in Texas rarely disciplined

The Texas Tribune has published some of the preliminary data from a report to be released later today (at the forum previewed by Grits below) analyzing Texas cases where appellate courts identified examples of prosecutorial misconduct but the state bar failed to discipline the attorneys. The item by Brandi Grisssom opens:
In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states. ...
In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
The McEachern case is certainly the only example I know of where a prosecutor has been disciplined by the state bar since I've been paying attention to such things (the actions that led to his probated suspension took place well before the study period), so I'm not surprised this research turned up no others. Those 91 cases, too, are just a sample identified from 2004-2008, Grits was told by one the study's collaborators, and not a comprehensive list. As Prof. Laurin pointed out, the research "explores documented court findings of prosecutorial error and there are many ways in which documented court findings, to the extent they’re publicly available, are not great ways of getting at ... how widespread of a problem there is." Still, it's notable if unsurprising that the state bar took action in none of the 91 cases identified during the period studied.

MORE: Find an excerpt from the press release below the jump:

New Research Illustrates Lack of Accountability for Prosecutors in Texas

New research released today by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The research will be addressed at a symposium today at the University of Texas School of Law that will include panelists with backgrounds from all aspects of the criminal justice system addressing systemic and legal approaches for reducing prosecutorial error and misconduct.

The Austin event marks the second stop on a national tour organized by the Prosecutorial Oversight coalition, which includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances.  But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor, University of Texas School of Law.

The research released today was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.  The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

From 2004 to 2008, courts found that prosecutors committed error in 91 cases.  Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.”  In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction.  From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

The Prosecutorial Oversight coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal.  Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.

“Most prosecutorial misconduct is not intentional, but we know from John Thompson’s and Michael Morton’s cases that when it happens, the consequences can be devastating,” said Cookie Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative.  “What’s clear from this data is that we’re not doing nearly enough to document the scope of the problem and the disciplinary systems as they currently exist are vastly inadequate.”

Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction.  (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed.  Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in 7of the reversals.  Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).

“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct.  But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct ,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.  “We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors.”


Robert Langham said...

If they aren't going to enforce discipline among their members....exactly what are they FOR?

Anonymous said...

I wouldn't discipline them for "improper arguments to the jury." That is something anyone can do, and things can slip right out sometimes. And I hate prosecutors and think most of them are win-at-all-costs cheaters, so that says something. That slope is just too slippery (and I slip on it a lot).

As for hiding evidence, yeah, they should lose their license for that.


Anonymous said...

Okay. We've got Nifong disbarred,
McEachern suspended, Name-unknown in Arizona disbarred. Cash for Kids Ciavarelli sentenced to prison.
Does a judge count?


Lee said...

Prosecutors that commit misconduct shold be themselves violently lynched!!

They treat victims as stepping stones in their career and defendants as mere disposable casualties.

We would be better off with a lynch mob for justice.

There is a special place in hell for Ken Anderson, John Bradley, Charles Sabesta, and Harry F. Connick. Their rule of terrorism is at an end and not short enough it was.

Lee said...

It will be my prayer today that prosecutors have a real bad day today.


I pray your brakes go out running down a hill
I pray a flowerpot falls from a window sill and knocks you in the
head like I'd like to
I pray your birthday comes and nobody calls
I pray you're flying high when your engine stalls
I pray all your dreams NEVER come true

I sincerely hope the remainder of prosecutor's days are worse thatn all of the inmates bad days put together.

Anonymous said...

What a freak show this blog attracts.

Anonymous said...

It attracted you, didn't it 6:03?

Anonymous said...

I did 17 years due to prosecutor misconduct. The prosecutor should have to do the time that the poor slob that was wrongly convicted did, day for friggin' day!

Anonymous said...

I love the information given out, and definitely shows a huge problem, however, the data could only be collected for cases that actually went to trail, NOT on the 90% that are plea bargains. I would love to see that data!

Lee said...

I am hoping that these prosecutors have an even worse day today. I am really hoping that most Texas prosecutors have a heart attack today or are diagnosed with some terminal canser that results in a very slow excruciatingly painful death.

Anonymous said...

Lee, I understand your frustration, believe me, I do. But, its great that this topic is finally getting some attention. Maybe you should consider toning down your comments a bit so we don't turn people off who have not yet considered the seriousness of the problem.

I think that only a small fraction of this stuff gets discovered. If a defendant pleas, which occurs in 95% of cases, it is extremely unlikely any misconduct will be discovered. Even if a case goes to trial the chances are slim that some misconduct will be discovered. Furthermore, even if it is discovered, the appeals courts often label it as harmless error and it is rarely reported to the bar.

Unfortunately, we've seen where many of the prosecutors who engage in this behavior are awarded and often become judges. For example, Jack Skeen, John Bradley, and Charles Sebesta were all name Prosecutors of the Year at some point. Jack Skeen and Ken Anderson became judges. Skeen has committed egregious and blatant misconduct on the bench. The 14th Court of Appeals slammed him for making up ad hoc rules of evidence to help the prosecution win. You would think that right there would be enough to get him removed from the bench. Yet, the Judicial Conduct Commission did nothing.

My point is that one of the dangers of letting this stuff go is these people become more powerful and more dangerous.

Anonymous said...

Ken Anderson - During the 25 years his crime upon Mr. Morton went undisclosed, HOW MANY OTHER LIVES WERE DESTROYED!
There is no question of probable cause to arrest Anderson for violations of State and Federal Penal Laws, No statute of limitations bar on these. Yet he continues to collect a paycheck from the public.

Phillip Baker said...

Well, Anon 12:26, I know for a certainty of one other family savaged as a result of Anderson's self-serving behavior. Then there is the Antonetti case, which shares much in common with the other 2, including a man in prison who may have been wrongfully convicted. And the woman who was assaulted in the same modus operandi of Norwood but survived. Neither of these are confirmed, but sure look suspicious.

But does anyone think Mark Norwood just stopped his killing after 1988? I and others are urging law enforcement/prosecutors in EVERY area in which he lived after 1988 to diligently review all murders of young brunette mothers in that time. We need to make sure there are no other Mortons out there, still in prison but not knowing all that is going on here.

Anonymous said...

Baker makes a good point. I would suspect, if there were good way to research the issue, we could find other instances where police and prosecutor pursued the wrong person, allowing the real perpetrator to commit more crimes. A little different twist of that occurred in the Kerry Max Cook case. As far as we know the real killer hasn't killed again (as far as we know). But, the jailhouse snitch who was released on time served (less than 2 years, I think) on a murder charge, reduced to manslaughter, later killed again. He admitted that his testimony against Cook was a lie. So prosecutors let a real murderer walk in exchange for his lie to convict an innocent man.

I wonder how many times this sort of things has really happened. We'll probably never know. But, this is yet another reason to put a stop to prosecutorial misconduct.

Jeff said...

I think all lawyers should be held to the standard of officers of the court, not just prosecutors. Most criminal defense lawyers were prosecutors at one time. If its good for the goose, then it's good for the gander. Convict a defense attorney for concealing evidence or lying repeatedly in a manner that perpetuates their client's crime. These folks dont care about their client or justice. It's merely a personal challenge for them, a game. And they dictate how much they get paid by drawing out the game.

Anonymous said...

Jeff, I'm sure you know that the roles of the prosecutor and the defense attorney is different. I agree, if the defense attorney commits conduct that is criminal, he or she should be prosecuted. Otherwise, the prosecutors first responsibility is to do justice. The defense attorney's first resposibility is to represent his client's interest. I don't think that allows or excuses dishonesty or unethical behavior, but the obligations of the defense attorney are simply different from those of the prosecutor. If you don't like that, no one is forcing you to be a prosecutor.

Under current law the prosecutor has an obligation to turn over exculpatory evidence. The defense doesn't. If you don't like that, try to get the law changed. If a prosecutor withholds exculpatory evidence he is not only violating a rule, he is commiting a criminal offense by violating a person's consitutional rights, as well as violating his duty to do justice. So, what's good for the goose...doesn't really apply because the roles and obligations of each are different. An act committed by a prosecutor may be crimnal while the same act committed by a defense attorney may not be. If you don't like that system, try to get it changed. Again, I agree that if the defense attorney does commit a criminal act or does something unethical, he or she should be held accountable. But, again, the same act may be illegal or unethical for a prosecutor but not a defense attorney because of the differing roles and obligations of each.

You could push for reciprocal discovery. Maybe that would be a good thing, some states have it. The problem that I have with that is, isn't it really the government's responsibility to prove its case. The defense should not be required to do that for the government. On the other hand, because we are supposed to have the presumption of innocence, it is not the defense's responsibility to prove innocence. If the police and prosecutors do their jobs right, there should be no evidence out there that surprises them. The problem is we often see sloppy police work where police go with the first suspect and don't investigate other leads. Sloppy police work should not obligate the defense to turn over anything. The police and prosecutors need to thoroughly investigate cases before they bring them to trial. If they do that, there is no need for reciprocal discovery.

Lastly, your comment: These folks dont care about their client or justice. It's merely a personal challenge for them, a game - applies equally, or, from what I've seen more so, to prosecutors.

Anonymous said...

This report is a complete joke. All it does is highlight how INFREQUENT real prosecutor misconduct is in Texas! To stretch the definition of "misconduct" to include harmless trial error is nothing more than a transparent, agenda driven attempt to weaken criminal prosecution across the board. It's not about "accountability.". It's about making it easier for guilty people to get off! The defense bar wants to be able to reduce or chill prosecutor zealous advocacy with the threat of grievances and lawsuits. Since public safety is inextricably tied to effective criminal prosecution, I can only hope that the public and legislature sees through this charade.

Anonymous said...

Oh 12:20, keep living in your deluded little world.

Anonymous said...

I'd be interested in how much of this misconduct is merely sour grapes on the part of losing defense counsel and how much is bonafide criminal misconduct. I've heard of both just like I've heard of the kind of mistakes 12:20 mentions. It's an imperfect system but just as soon as anyone can come up with something we can all agree is better, we should implement it.

Anonymous said...

It is amazing how dense someone's bias can make them. What we are talking about here is not sour grapes or mere mistakes. There is ample evidence, a small fraction of which I have previusly cited in comments here, that INTENTIONAL, DELIBERATE AND SERIOUS PROSECUTORIAL MISCONDUCT is a frequent occurrence. Those who want to protect the status quo are either in denial or are the ones who are engaging in this misconduct.

Think about it, if you give someone great power with no accountability, it's inevitable there will be abuses. Say we repealed the laws against burglary. Don't you think there would be more burglaries. Prosecutors currently have a lot of power with no accountablity. Absolute immunity corrupts absolutely. Continuing to call it just sour grapes or deny intentional misconduct is occurring frequently just protects dishonest and unethical prosecutors. Why would an honest prosecutor want to protect those who engage in deliberate and intentional misconduct?

If it is so infrequent, why would you oppose limiting prosecutor's immunity to qualified immunity. Qualified immunity still provides a lot of protection. If misconduct is so infrequent as you claim, qualified immunity should provide plenty of protection. Qualified immunity allows for mistakes. If prosecutors don't want to be held liable, they can just choose not to engage in deliberate and intentional misconduct. It's that simple. The only reason to oppose limiting immunity to qualified immunity is to protect prosecutors who engage in deliberate and intentional misconduct.

The unvarnished truth is that INTENTIONAL AND DELIBERATE MISCONDUCT is a frequent and serious problem. Those who claim differently are either in denial or are trying to preserve their own power to engage in such misconduct.

Anonymous said...

I find it frightening the we apparently have a couple of prosecutors coming here and saying that this is just sour grapes or mistakes. We expect prosecutors to be able to evaluate the facts that are brought before them and determine if a case has merit or should go forward. In this case, the facts are clear. INTENTIONAL AND DELIBERATE PROSECUTORIAL MISCODUCT is a serious and pervasive problem. The evidence is abundantly clear. If these prosecutors are unable to see something so plain and clear, then they have no business being prosecutors.

I believe it was in on one of the SCOTUS cases on qualified immunity where the court said that qualified immunity protects "all but the plainly incompetent." Maybe these prosecutor do have something to fear from qualified immunity.

Anonymous said...

12:20, I ask you to think about the conduct you are here defending. You say defense counsel wants to "chill prosecutor zealous advocacy."

By this statment, in the context of this particular discussion, I must assume that you are maintaining that acts such as DELIBERATELY withholding exculpatory evidence, KNOWINGLY getting jailhouse snitches to lie, KNOWINGLY and INTENTIONALLY coercing and allowing witnesses to lie, KNOWINGLY, INTENTIONALLY, AND DELIBERATELY taking actions that deprive a defendant of a fair trial is simply "zealous advocacy." Is that really what you are saying? It seems to be. If that is what you are saying....well....what does that say about you?

I wonder if you are a Smith County prosecutor. I have heard many refer to the common misconduct in that office as merely "aggressive" prosecution.

Furthermore, 12:20, why do you feel prosecutors should be exempt from following the rules and the law? I guess you believe the rules apply to everyone else, but not yourself. Scary to think you are a prosecutor.

Tell us 12:20, how often have you DELIBERATELY withheld exculpatory evidence or committed other DELIBERATE AND INTENTIONAL misconduct. I assume you must have as you feel the need to maintain the status quo: that is prosecutors being above the law and free to, at will, commit INTENTIONAL AND DELIBERATE acts of misconduct.

If you don't follow the law you are no better than those you are prosecuting. In fact, you are probably worse than most of them because you have accepted a position of responsibility and should be held to a higher standard. But, you argue for a lower standard...actually, no standard at all. ABSOLUTE IMMUNITY CORRUPTS ABSOLUTELY.

Jeff said...

To 10:01 AM on 03/31/12:
Thanks for the insight. Very interesting.

Anonymous said...

Calling for a moment of silence here. Someone broke out of prison, stole an identity, got a jhob, rounded up a bunch of ADAs at the "Convict 'em all & let the State Bar worry about it" convention and made 'em walk the plank off the back of a cruise ship in Galveston Bay. They made flotation devises out of the former, drank sea water and paddled towards Cuba.

Despite their agenda, they are human & deserve our thoughts and prayers.


Thomas R. Griffith said...

Hey Grits, thanks for sharing this finding. The only problem with the research is that it 'only' gives us a peek at the reported cases where the appellate courts identified examples of prosecutorial misconduct but the state bar failed to discipline the attorneys from 2004 to 2008.

Even with the limited scope of variables and strangely shortened time frame, it clearly indicates that the State Bar (attorneys / lawyers) are nothing more than conspirators in the great Texas round-up & cover-up.

*So far - the Supreme Court (attorneys / lawyers) gave us the Play Bargain Games in which enticed police to arrest at will, forced both sides (attorneys / lawyers) to 'play' court, enabled lazy ass judges (attorneys / lawyers) to look the other way & the State Bar (attorneys / lawyers) ignored the majority of complaints in a 4 year period. Anyone see a pattern?