Wednesday, October 22, 2014

The case for punishing prosecutor misconduct

At Texas Monthly, Pam Colloff yesterday made "the case for punishing prosecutors who abuse their power," focusing on the Hannah Overton, Michael Morton and Anthony Graves cases. She also highlighted a case that's gotten less attention:
Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.
Colloff suggested the State Bar of Texas must "radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist."

She also recommended that, "the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar."

24 comments:

Anonymous said...

The Bar has plenty of teeth. The problem is a lack of cajones to put them to good use.

Anonymous said...

And yet another biased, superficial and agenda driven EDITORIAL by Pamela Colloff. Grits, do you think it's a coincidence or just shitty research on Ms. Colloff's part that she completely fails to mention the Legislature's passage of SB825 (Whitmire) last year that extended the statute of limitations for grievances for Brady violations by prosecutors and removed the private reprimand sanction for prosecutors who are found by the bar to have committed a Brady violation? I wonder if that information might have any influence on the reader's opinion as to the merits of her argument regarding the need for more remedies? But then again, this type of "reporting" by Ms. Colloff on these "innocence" issues has become all too typical of late. So the Nueces County D.A. has decided to retry Ms. Overton again, huh? Well apparently, there is another side to THAT story that Ms. Colloff is not reporting as well.

Gritsforbreakfast said...

I don't think it's a coincidence or shitty research, 9:43. I think Colloff likely recognized that that bill was a minimalist tweak that NOBODY thinks in and of itself is enough to change prosecutor behavior. It was a decent bill that I supported, but as long as the state bar fails to sanction prosecutors, it won't solve the problem.

RE: the Overton case, if she's guilty as you say then it won't do any harm to have a retrial in which the prosecution doesn't conceal probative evidence from the defense. Even if she's guilty, Americans have a right to a fair trial and if the prosecutor concealed exculpatory forensics, she didn't get one.

Anonymous said...

9:43 complains about an "agenda" driven editorial? Shame on anyone for having an "agenda" to promote fairness and honesty in the criminal justice system. Could it be that 9:43 has an "agenda" which is to protect his own ability to lie, cheat and steal to get convictions? I don't know why so many prosecutors, like 9:43 have such little faith in their own skills as attorneys. Their need to defend a system which allows them to withhold evidence, manufacture evidence, coerce witnesses, etc., seems to indicate that they are insecure about their abilities to win in a fair fight. I guess the prosecutors office is the place for attorneys who can't win unless the game is rigged. If you can't win in a fair fight, 9:43, maybe you shouldn't be an attorney.

Anonymous said...

Oh let the guy off death row already, at $85,000 a year for compensation he is already looking at a $680,000 payout. Come on!

Anonymous said...

Hit the nail on the head... until absolute immunity is changed to reasonable immunity very little will change.

Anonymous said...

Grits, I don't know whether there's enough evidence in the Overton case for the prosecutors to get a guilty verdict or not. The point is that impression one is left with after reading Colloff's commentary is that Overton is some poor exonerated innocent who was convicted by "smoke and mirrors" manufactured by some unscrupulous alcoholic prosecutor. Evidently, there must really be some evidence supporting the notion that Overton is, in fact, guilty or Skurka's office wouldn't be going forward with a retrial. But you sure wouldn't know that by reading this obviously slanted article. And when Colloff leaves out so many key facts and doesn't even make any effort to appear to be objective, it really seems to undercut the merit of her claimed need for additional remedies.

Incidentally, how do you know SB825 isn't working? It's only been effective for a year now. Do you have any data that shows the bar is not investigating or punishing reported claims of prosecutor Brady violatons that have occurred over the last year? You yourself have noted many times on this site that new laws should be given an adequate opportunity to demonstrate their efficacy before changes are made (See, e.g, the Morton Act). What's the difference?

Gritsforbreakfast said...

@8:34, the difference is that the Michael Morton Act was proposed as a complete fix to the problem of prosecutors withholding evidence. It lacks remedies but addresses the issues of disclosure more or less comprehensively.

SB 825, by contrast, was watered down from the get go and nobody thought it would completely solve the problem. SB 825 was a very minor tweak; the Michael Morton Act was major legislation.

Anonymous said...

Grits, since you use your blog to refine policy and legislative talking points, try these on. If we're going to put prosecutor immunity back on the table after SB825 was enacted, why don't we put reciprocal discovery back on the table after the passage of Morton? You'll recall, of course, that prosecutors agreed to forego the reciprocal discovery provisions that were included in Sen. Ellis' earlier versions of that bill to get that "comprehensive" discovery legislation passed--another fact that Colloff conveniently overlooks. From my reading of the media coverage in the Overton case, part of that Brady problem stemmed from the fact that the evidence was apparently related to a defense. If prosecutors aren't apprised of defensive claims before trial, what might otherwise appear to be irrelevant or inconsequential evidence, may become Brady material depending upon claims asserted by the defense during trial. Prosecutors may be a lot of things, but clairvoyant isn't one of them. If you're going to begin exposing prosecutors to claims or threats of civil liability it would seem to me to be appropriate to at least require the defense bar to pony up their defensive strategies so prosecutors could adequately discern what's Brady and what's not. Prosecutors worked constructively and in good faith on BOTH of those bills last session (and I think if you talk to Whitmire, Ellis and Duncan you'll find that in many of the discussions both bills were discussed in tandem). Now it appears that the transparently biased Colloff is advocating yet another punitive sanction against prosecutors before SB825 even has a chance to work. Kind of like "having your cake and eating it too." So what do you think? Do you believe TCDLA will support revisiting reciprocal discovery and lay all their cards on the table? Nearly every other state and the federal system require it. After all we're just seeking the truth, right?

rodsmith said...

sorry 11:21 but the burden is on the state not the defense. The state should be required to release it all automatically. If they really believe they have the right individual why hide the info.

there is no burden on the defense. that's how it was setup by the constitution of this country.

Anonymous said...

The practical problem with reciprocal discovery is that the defense bar is not going to be able to comply and people won't be able to raise their legitimate defenses. As members of the TCDLA listserv well know, there are plenty of attorneys who don't even think about their cases until the night before trial. And even supposedly seasoned attorneys screw up - death row inmate Michael Yowell's trial counsel failed to file a timely notice of an insanity defense, and presented virtually no mitigating evidence. Yowell was executed, but that attorney now runs the Capital Public Defender Office. Strange ...

Stephen Karnes said...

My stance has long been that it is not the job of the District Attorneys office to seek convictions. It is their job to ascertain the truth as best they can and present the facts of the case. Whether it results in conviction or acquittal should be of no concern to the district attorney. If he or she has presented all the facts then the decision is up to the jury or judge, as the case may be. Defense attorneys we know present the defendants side of the case, that there are rules is normal, my main problem in all this is , IF a prosecutor discovers evidence that may prove the person innocent, WHY would they want to hide it, it is the definition of their job to present that evidence and if known beforehand, not even attempt prosecution. There is no reason to have a law that prevents prosecutors from their own behavior, it is incomprehensible to me that a society as advanced as ours will accept behavior like this from public officials.The State has a huge investigative machine with millions of dollars in resources, the defense not so much. The majority of offenses are charged against people who do not have the resources to equal the states so the state wins most cases, mainly because they can outspend the defendants. It is not supposed to work that way but it does and we all know that. Now prosecutors dont think they should be held responsible for hiding exculpatory evidence. That means they wish to be allowed to commit felony crimes and go home to dinner as a part of their jobs. They are not being allowed to do so anymore and are up in arms about it. I am not a fellow who has a hatred for prosecutors, just a little respect for doing the right thing. I will however say that the people working long term in felony prosecution positions have no doubt committed heinous offenses in the process of simply seeking the approval of their peers and their supervisors. The terrible part is that they know it, and it doesn't bother them, they go home kiss the wife, play with the kids, and eat dinner like they are normal members of society. During that day they may have completely destroyed 3 or 4 families just as nice as theirs because he or she needed to raise their conviction rate. Don't bother with your hateful comments, I care not a wisp what indignant prose you will spew. People like that suck at being human beings, it is all about you anyway. You take pride in your oratory skills and your authoritative tactics,but they are lost on people like me who know you for the small minded little cretins that you are.

Anonymous said...

Couldnt have said it better Stephan Karnes. I have often wondered how some prosecutors sleep at night, the "shady" ones of course

Gritsforbreakfast said...

@11:21, fwiw, I actually supported reciprocal discovery and disagreed with TCDLA on that score. You're arguing against positions I've never taken.

Otherwise, SB 825 only addressed the bar's ability to punish in older cases. It simply did not comprehensively address the issue - particularly in a forward looking way - and to claim that there's no need to address prosecutor misconduct because it passed is disingenuous and discredits your stronger arguments.

Anonymous said...

11:21 said "If you're going to begin exposing prosecutors to claims or threats of civil liability it would seem to me to be appropriate to at least require the defense bar to pony up their defensive strategies so prosecutors could adequately discern what's Brady and what's not."

If you simply require prosecutors to turn over everything instead of allowing them to argue whether something is or is not "Brady material," wouldn't that solve the problem. They don't need to know the defensive strategy if they simply turn over everything. Prosecutors have shown over and over that they cannot be trusted with the discretion of deciding what to turn over or what not to turn over - THE ONLY WORKABLE SOLUTION IS TO REQUIRE THAT EVERYTHING BE TURNED OVER. If you do as 11:21 suggests and force the defense to turn over everything but allow prosecutors to withhold stuff, they will undoubtedly use the info obtained from the defense to decide what they do not want to turn over and will come up with creative, yet disingenuous arguments to say that it is not "Brady material." Why, 11:21, do you really need to withhold anything at all. The only reason to withhold something is because you think it will hurt your case. If it will hurt your case, you have to disclose it. Its really that simple and there is no logical argument to support withholding anything at all, is there?

Anonymous said...

Why is it prosecutors feel they have to have such a slanted playing field in order to win. They already have way more resources than most defendants. The police work for them, they have staffs of investigators, etc. Most of the judges are biased in their favor. Heck, if a prosecutor isn't getting a 90% conviction rate without cheating he's obviously not very good. So, why do any of them feel the need to protect their ability to cheat. And, if they aren't cheating they have nothing to fear from having only qualified immunity as opposed to absolute immunity. So, why do so many of them fear qualified immunity? It has to either be a lack of faith in their own ability to win without cheating or, they have some other reason to want to cheat. Any of you prosecutors care to say which it is?

Anonymous said...

Oh great. Another way for the plaintiff's lawyers and ambulance chasers to make money. They damned near bankrupted the health care system in this state before the legislature wisely passed tort reform. Now the trial lawyers and their ilk want to have a key to our government treasury by allowing new causes of action by criminals? Hang on to your pocketbook taxpayers! You're about to get screwed again!

Anonymous said...

The claim that the state has unlimited resources in investigating crimes and prosecuting them is technically true while being pragmatically false. Realistically, every policing agency around has resource shortages and manpower issues while given the impossible task of following mandates written without concern for either.

A agree with Grits that Texas should follow the rest of the country and the feds by providing for reciprocal discovery, the truth being the ultimate goal. Those who want their cake and eat it too will never let it happen of course, far too many defense lawyers work in the state legislature, but it is a lofty goal to establish fairness.

Anonymous said...

"new causes of action by criminal?" Wouldn't it be more accurate to say causes of action against criminals in public office? First, some of these case we're talking about are people who are "innocent" but were convicted through misconduct on the part of the prosecutor. But, as 8:47 shows us, for many prosecutors it is never really about guilt or innocence. Whether the person has actually committed a crime or not, if they have been targeted by the criminal justice system, prosecutors like 8:47 will always see them as "criminals." Indeed, isn't it a crime for a prosecutor to knowingly withhold evidence, sponsor perjured testimony, pressure witnesses to testify falsely, etc. So, 8:47, isn't what we are really talking about it using the civil justice system to punish "criminals" who run the criminal justice system? I wonder, 8:47, are you one of those prosecutors who wants to protect your ability to get a conviction any way you can, regardless of how illegal or unethical? If so, doesn't that make you a "criminal."

Furthermore, I don't buy your feigned conserve for the taxpayers. Prosecutors are simply another form of government bureaucrat. There is as much waste and abuse of taxpayer money in the prosecutor's offices as there is any other government office. And, what about the wasted money prosecuting those who are innocent? Look at the Michael Morton case, for example. How much taxpayer money was wasted prosecuting him, while the real "criminal" was allowed to go free and kill again? WHere is your concern for the taxpayers in that regard? And, it seems to me that it is you that is truly on the side of the criminals because, the Michael Morton case is not the only case where the real "criminal" has been allowed to go free and commit more crimes, including murder. So, you are essentially advocating for the protection of prosecutors ability to frame the innocent while allowing "criminals" to remain free. Seems to me you are really pretty soft on real crime, aren't you?

Furthermore, the continued overcriminalization that is often pushed by prosecutors has resulted in billions of taxpayer money wasted. Where is your concern for the taxpayers in that regard?

Clearly, it is not concern for the taxpayers that motivates your comments. It is the desire to protect your own ability to engage in the criminal activity involved in withholding evidence, coercing witnesses and other forms of misconduct which have greatly weakened the public's faith in the criminal justice system.

One final point-why is it that you have complete faith in the criminal justice system to get it right but don't have any faith I the civil justice system? After all, prosecutors will always have qualified immunity which, according to the courts, protects all but the plainly incompetent. Does your fear come from the fact that, in a fair fight, you are plainly incompetent?

Anonymous said...

"Evidently, there must really be some evidence supporting the notion that Overton is, in fact, guilty or Skurka's office wouldn't be going forward with a retrial"

Not necessarily. Police and prosecutors often refuse to let go of a case, even when there is clear evidence of innnocence. For example, in the Kerry Cook case, Jack Skeen (recipient of the prosecutor of the year award and now district judge) prosecuted Cook 3 or 4 times even though he had evidence in his file that pointed to the real killer. Just because a prosecutor is retrying someone doesn't mean they are guilty.

Skeen and his prosecutor of the year award illustrates another good point. Prosecutors have only themselves to blame if they lose their absolute immunity. Prosecutors, as a group, have repeatedly condoned and rewarded misconduct by their colleagues. I believe that, in addition to Jack Skeen, Charles Sebast, John Bradley, and maybe even Ken Anderson were recipients of prosecutor of the year awards. If prosecutors had stepped up a long time ago and cleaned their own house, there would be no need to be discussing the immunity issue now. So, the responsibility for any feared negative repercussions from their loss of immunity falls back on the prosecutors themselves, not on plaintiff's lawyers, journalists, or anyone else.

Anonymous said...

Zero immunity and/or the death penalty for prosecutors guilty of misconduct/malfeasance is the answer. DA's and doctors both bury their mistakes.

kylie said...

And I wonder how the victim's family could have reacted. I came across this post http://accidentattorneyhelp.com/5-things-your-personal-injury-attorney-can-do/ that hiring a lawyer is a wise idea. I'm just hoping there are enough evidence to bring the case to an agreement.

Anonymous said...

In case you missed it: http://www.chron.com/news/houston-texas/houston/article/Appeals-court-resets-murder-trial-after-finding-5872863.php

Brown's conviction was tossed by the CCA.

Tnix said...

Amen brother!