Friday, January 30, 2009

What sanctions for prosecutors who cheat to win?

How many more cases do we need to see where prosecutors withhold exculpatory evidence from the defense before the state bar, the courts or the Legislature act to sanction them?

Former death row inmate Michael Toney has been moved to the Tarrant County jail after his conviction was overturned last month because of Brady violations where Tarrant prosecutors failed to turn over exculpatory evidence to the defense before Toney's trial 23 years ago, reports the Fort Worth Star Telegram ("Inmate moved from death row to Tarrant County Jail," Jan. 30):

Toney was convicted of capital murder for the 1985 Thanksgiving bombing that killed Angela Blount, 15; her father, Joe Blount, 44; and her cousin, Michael Columbus, 18.

An appeals court overturned his conviction in December after the Tarrant County District Attorney’s office acknowledged that at least 14 documents favorable to his defense were withheld by prosecutors during his trial.

Reports the Startlegram, "Toney has always maintained his innocence. No physical evidence connected him to the crime."

I'd mentioned in the comments recently that the prosecutor in the Tulia drug sting cases, Terry McEachern, is the only prosecutor in recent memory disciplined by the Texas state bar for Brady violations, i.e., for withholding exculpatory evidence, even though it happens quite frequently.

Since the state bar won't discipline them, there's no criminal sanction for withholding evidence, and the US Supreme Court has ruled that they carry no civil liability, what should happen to prosecutors who cheat to get a conviction? What other options are there for reining in such behavior?


Anonymous said...

Who is going to stop District Attorney John Bradley in Willamson County for his Dracula sucking "let's get their blood anyway" policy? When will this be challenged?

Our IVth amendment rights are null and void in Willamson County. If this isn't a case for cheating, I don't know what is.

Michael said...

Well, why don't we publish the names and photos of each district attorney in the state of Texas who has been found by an appellate court to have committed a Brady violation? A rogue's gallery would be a start.

x4livin said...

How does one go about proving there was a violation when we know there was? This is an easy one to know, but how to prove?

Anonymous said...

How do you sanction any attorney, it's called disbarment, suspension or public reprimand.
Perhaps the State Bar should be more active, but that doesn't mean there are no sanctions available.

The only prosecutors I've ever suspected of knowingly hiding the ball are those who were only there to pad their resume before heading off to private practice. When they become criminal defense attorneys, they don't change their spots.

Gritsforbreakfast said...

"Perhaps the State Bar should be more active, but that doesn't mean there are no sanctions available."

As a practical matter, it certainly does. Having been on the inside of advocacy efforts around the Tulia case, I can tell you that the extraordinary circumstances around McEachern's sanction was virtually un-replicable. They NEVER pursue such cases on their own, that one basically had to be rammed down their throat by a large-scale, national political movement surrounding the Tulia episode. And even then, they didn't disbar him.

I really like Michael's idea. After the Lege session is over, that might be a worthy project to undertake.

Anonymous said...

I agree with you Michael.

The problem as I see it is who (lawyer) is going to have the cojones to "piss in the Cheerios" of some state district judges, who really run the courthouses in rural Texas counties.

After all, they pretty much decide who is or isn't going to run for District Attorney in the rural areas of Texas.

Sam said...

I don't think all Brady violations are intentional. Who will decide whose picture to post for a Brady violation? The State Bar needs to step forward to handle these matters, as do the DA' and CA's whose employees commit knowing and purposeful violations.

Sam said...

As a further note; if we prosecutors have to "cheat" to win then we are no better than the criminal defendants we prosecute.

Gritsforbreakfast said...

I agree with you, Sam, that not all Brady violations are intentional, but neither do I think only a de minimus proportion are knowing violations. I do believe there's a lot of gamesmanship that goes on.

I also think you're right that "if we prosecutors have to 'cheat' to win then we are no better than the criminal defendants we prosecute." That's why I wish the state bar would step up on the topic - their failure to do so makes it look like such violations are being comprehensively covered up, whereas if they'd strictly discipline over it when it occurs, it would be clear we're talking about a minority of prosecutors, not all of them, by a longshot. But as it stands, the complete whitewash makes it hard for the public to have confidence that the profession can self regulate when it needs to.

As for "Who will decide whose picture to post for a Brady violation?," if I decide to take that up as a Grits project post-session, the answer will be, "me"! :)

Or perhaps it'd be possible to pull together multiple legal bloggers and law student volunteers for a team project. If nothing else, over time it could put pressure on the state bar disciplinary committee to act more aggressively.

Sam said...


I agree that unfortunately it is probably not a de minimus number of prosecutors who do this and that gamesmanship plays all too big a role.

Perhaps there needs to be a 'special' committee of both prosecutors, defense attorneys and others like yourself to push this issue with the State Bar? Or post-session, to generate media attention and try to come up with suggestions and ideas to address these issues.

Anonymous said...

Well, I've got a Brady violation that was intentional for you. And I can tell you how we proved it. We filed a motion for a new trial. We had a copy of the withheld evidence which was a tape recorded conversation. We wrote the DA a letter prior to the hearing and told him to have an ADA present at the hearing because he would be called as a witness. He tendered a copy of the conversation prior to the hearing and admitted on the stand he had the evidence before the trial and did not tender it to us. As soon as we receive a copy of the transcript we are filing a bar complaint against the DA. You're right. There surely should be something more we can do, because meanwhile back at the ranch our client is in prison.

Anonymous said...

Michael said... Well, why don't we publish the names and photos of each district attorney in the state of Texas who has been found by an appellate court to have committed a Brady violation? A rogue's gallery would be a start.

There's a site that's dedicated to publishing photos and stories of corrupt judges, lawyers and D.A.'s.

See report corrupt judges, D.A.'s and lawyers here:

Gritsforbreakfast said...

11:11 - Clicking through the link you provided, one of the first headlines I noticed called a judge a "douchebag fascist." Another headline declared, "Five out of four Supreme Court justices deserve to be hung." Given that a) there are 9 SCOTUS justices, b) calling for summary execution of public officials is a tad extreme, and c) name calling rarely convinces anyone of anything, I'm not sure that's the most credible venue for posting complaints about Texas prosecutors.

To 9:18, if you want to forward on any details, maybe yours can be our first example!

kbp said...

Open Discovery

Anonymous said...

I am not making a threat against anyone, nor am I encouraging violence against any person. But we do still have the Second Amendment in force. Just saying.

Dave said...

Just making a statement of facts and of law: 1. Fact: Plato stated: Those people who do not involve themselve in public affairs end up getting RULED by evil people." 2. I don't really care who said: Tyranny will triumph when good people do nothing," I from a sound mind, and just plain common sense, and 60 years of experience that they are NOT "good people" if they do nothing.

So that leaves this as follows. . .
COLOR OF OFFICE, criminal law. A wrong committed by an officer under the pretended authority of his office; in some cases the act amounts to a misdemeanor, and the party may then be indicted. In other cases, the remedy to redress the wrong is by an action.
Bouvier’s Law Dictionary, 1856 [judges and prosecutors are "acting" as officers,]

COLOR OF OFFICE. An act unjustly done by the countenance of an office, being grounded upon corruption, to which the office is a shadow and color. Plow. 64. Day v. National Bond & Investment Co., Mo.App. 99 S.W.2d 117, 119.

“A claim or assumption of right to do an act by virtue of an office, made by a person who is legally destitute of any such right..”
Feller v. Gates, 40 Or. 543, 67 P. 416, 56 L.R.A. 630, 91 Am.St.Rep. 492; Citizens’ Bank of Colquitt v American Surety Co. of New York, 174 Ga. 852, 164 S.E. 817; Pontiac Trust Co. v. Newell, 266 Mich. 490, 254 N.W. 178, 181

YES THAT SAID " legally destitute of any such right." pertaining to ALL judges or prosecutors. And “DESTITUTE” means TOTALLY LACKING. . . "of any such right" meaning NO JURISDICTION or lacked "locus standi in judicio."

NO one, male or female [or otherwise,] form pauper to Pope, or from homeless to President, or from a juvenal to a Chief Justice, has any kind of any immunity in any criminal act.
And anyone who believes otherwise is a terrorist against the American form of government and common law and common sense. NO debate!