Why aren't prosecutors held accountable when appellate courts find knowing misconduct?

Usually I have a good idea how Grits readers think about a topic when I put up a reader poll, but I was still surprised that 73% of Grits readers who responded (out of 276 of you) thought prosecutors should not have any more immunity from civil suits than defense attorneys. Just 4%, only 12 people, thought the current standard of "absolute immunity" is the right one, with 21% of you thinking "qualified immunity," the same as police officers, was the right place to draw the line. I would joke that I thought I had more than 12 prosecutor readers, but two line prosecutors have emailed me privately to say that they don't support absolute immunity, either, though they didn't want to go on the record. As it turns out, quite a few folks right about now - from the legislature to the judiciary to academia - think the issue of prosecutorial immunity is ripe for review. Perhaps it's an issue the Speaker of the House or Lieutenant Governor assign to a legislative committee as an interim charge; it deserves fuller exploration.

As if  on cue to give me a newshook for the reader poll, the Texas Tribune has a story today about a capital murder case being retried after the original conviction was overturned at the US Supreme Court because of prosecutorial misconduct.  The catch: The same prosecutor is retrying the case some 30 years later.The article by Brandi Grissom opens:

For the second time in three decades, a Texas court is preparing to decide whether Delma Banks Jr. should be executed for the 1980 shooting death of 16- year-old Richard Whitehead.

The U.S. Supreme Court overturned Banks’ death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. “It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Banks’ appellate lawyers.

Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Banks until he “gets what he deserves.”

The prosecutorial misconduct in question involves failure to disclose exculpatory evidence - in particular inducement given to confidential informants in exchange for damning testimony:

In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Banks’ lawyers discovered a transcript showing that Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said, persuading him to drive to Dallas to get a gun. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Cook denied on the stand that anyone had helped him with his testimony, and Farr said he had not been paid for his help in the case. During closing arguments, Elliott told jurors that they should believe the two witnesses.

In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help. But they said Banks’ lawyers were at fault for not uncovering the information sooner.

The Supreme Court ruled that without the testimony of the two witnesses, Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.

In cases involving "deliberate deception of a court and jurors by the presentation of known false evidence," in the words of the Supreme Court majority, why shouldn't prosecutors be liable? Since he's still practicing and even retrying the case, it's a safe bet prosecutor James Elliott was never rebuked by the state bar, despite the direct rebuke from the nation's high court.

Just as with Charles Sebesta in the Anthony Graves case, Mr. Elliot's example makes me wonder why the State Bar doesn't discipline prosecutors when appellate courts overturn criminal cases because of egregious misconduct? In Sebesta's case, the Fifth Circuit's opinion (pdf) found misconduct by both the DA and the Texas Ranger who was the lead investigator, declaring that "Perhaps even more egregious than District Attorney Sebesta’s failure to disclose Carter’s most recent statement is his deliberate trial tactic of eliciting testimony from Carter and the chief investigating officer, Ranger Coffman, that the D.A. knew was false and designed affirmatively to lead the jury to believe that Carter made no additional statement tending to exculpate Graves."

The US Supreme Court accuses James Elliott of "presentation of known false evidence," but he faces no consequence.The Fifth Circuit said Charles Sebesta elicited testimony he "knew was false," but the state bar failed to discipline him. Whether it's holding them civilly liable, pulling the plug on their license at the state bar, prosecution, or some other consequence, surely it's obvious there shouldn't be "absolute immunity" for these types of prosecutorial misconduct. I don't know what it will take to bust that nut, but surely there must be some way to hold prosecutors accountable when they knowingly cheat to win.

MORE (5/10): Jordan Smith at the Austin Chronicle lets me know that she covered the Delma Banks case extensively when it went before SCOTUS, event traveling to Washington to hear oral arguments. Her recollection: "the state's argument re why Banks didn't deserve relief was rather stunning. Also, the complete lack of investigation by the Bowie DA's office was ridiculous." See Smith's coverage here and here.

See related Grits posts:

• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?