"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."One of the examples mentioned by Minora was Kerry Max Cook, who has not yet been formally exonerated but was unquestionably the victim of prosecutor misconduct. The story quoted from a 1996 Court of Criminal Appeals opinion declaring, "the State's misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State over a 14-year period — from the initial discovery proceedings in 1977 through the first trial in 1978 and continuing with the concealment of misconduct until 1992."
The Observer story also hones in on an underlying issue that's less frequently discussed - police withholding exculpatory evidence not just from the defense but from the prosecution team. "While police give prosecutors a thin file of relevant information, the complete, fat file stays in the department with documents that may be useful" or sometimes, exculpatory.
Prosecutors are obligated to hand over all exculpatory evidence and the courts consider "Brady" material any exculpatory evidence held by any government agent, not just what's in the prosecutor's file. When police fail to hand over exculpatory evidence, it will still be dubbed a "Brady violation" and hence prosecutorial misconduct in court, but in some cases the prosecutor may be unaware the evidence exists. Shannon Edmonds of the Texas District and County Attorneys Association recently told Grits that, according to an internal review, about half of Brady violations stem from prosecutors withholding evidence and the rest from police never giving the information to prosecutors in the first place.
Obviously Grits doesn't believe prosecutors should be sanctioned by the State Bar unless they knowingly withheld evidence. But since they rarely punish prosecutors, the much greater problem is that, even when knowing violations are committed - and even when they're acknowledged by appellate courts as in Kerry Max Cook's case - prosecutors still face no consequences. Edmonds' boss, Rob Kepple, told Minora he thinks the term prosecutorial misconduct is "used too broadly" to include mere mistakes. That may be true in some instances, but from an official perspective, Grits believes the State Bar in particular doesn't apply the term nearly often enough.