'How to curb rogue prosecutors,' or, 'The gathering clouds'

Grits linked the other day to a Dallas News editorial (behind paywall) published over the weekend (Nov. 12) titled "How to curb rogue prosecutors" which opened:

One thread running through many criminal exoneration cases in Texas involves prosecutors who failed their legal and moral duty to justice and fair play.

Too many of them appear to have been more interested in winning a conviction than airing the whole truth, even at the expense of someone’s liberties.

Lawmakers need to unravel these tangled messes, then find ways to build safeguards against willful or sloppy miscarriage of justice in a district attorney’s office.

Notably, to solve this problem, the News offered three suggestions: A statutorily mandated "reciprocal discovery procedure" where prosecutors must open their files to the defense, improved training (la de da), and most intriguingly, creating state-level civil liability for extreme prosecutor misconduct:

Finally, though a prosecutor can be criminally charged for misusing his position, an individual who is railroaded by a crooked DA has no access to state courts to pursue civil claims.

Legislation was filed this year to provide that access and limit a prosecutor’s immunity, but the bill went nowhere, with no debate. Lawmakers should take another look, give the matter their full attention and hear pros and cons.

The vast majority of prosecutors are honorable public servants and should not have to look over their shoulders in fear of nuisance suits. That could drive them out of the profession.

But there are outliers in any occupation, and they should not be immune from accountability.

The bill they're talking about was Rep. Lon Burnam's HB 2641, which, as described in this Grits post, would have provided a "a state-level remedy to federal judicial activism" which created the doctrine of "absolute immunity" for prosecutors whole cloth with no statutory basis whatsoever. If you're really and truly "fed up" with the federal judiciary from a state's rights standpoint, this should be a cause you can get behind: It's the ultimate snub, asserting Texas' rights as a state over decades-old federal judicial fiat. Framed thusly as an expression of 10th Amendment state's rights, I see no reason why such legislation couldn't garner bipartisan support, even if it rankled a lot of prosecutors along the way.

Such ideas seem dangerous and heretical to career prosecutors. But we live in a moment when folks in the Tea Party, the "occupy" movement, those groups' respective fellow travelers, and wide swaths of unaffiliated but alienated voters are fed up with the status quo and potentially open to "dangerous and heretical" ideas. At their user forum, the District and County Attorney Association lobbyist pointed to the Dallas News editorial under the headline, "The gathering clouds." They can see the storm coming.

In many ways, tackling prosecutor (and police) misconduct remains among the lasts frontiers where criminal justice reformers have made little progress. A lot of the early legislative goals of the innocence movement in Texas have been met. Post-conviction DNA testing was established, then expanded. Eyewitness ID legislation was passed and Texas courts are reexamining eyewitness evidence. Corroboration was required for jailhouse informant testimony and undercover drug snitches. Texas now has the most generous compensation package in the nation for exonerees. New standards are being created regarding biological evidence preservation.

Certainly the task is far from complete. I'd still like to see police required to record interrogations, and in light of recent rulings at the Court of Criminal Appeals, Texas' writ law needs tweaking so that defendants can seek habeas relief not just based on new evidence but also new scientific findings that discredit old evidence. Thousands of old, untested rape kits discovered at police departments around the state should be vetted not just for who they might help convict but also who might be exonerated. The Forensic Science Commission's jurisdiction is too constricted and needs to be expanded. With the notable exception of arson cases, no official body has begun to systematically vet bad forensics in old cases. (For example, there's been no official examination of cases where people were convicted based on since-discredited testimony by dog-handler Keith Pikett in so-called "scent lineups.") There's still a lot to do.

But at least on all those issues, what needs to be done is fairly straightforward. Prosecutor misconduct has been among the toughest nuts to crack, in part because there's a paucity of ideas for how to effectively rein it in. To say the state bar has been ineffective on the topic would be generous. (I've heard it said they've been "complicit," which is closer to the truth.) Complicating matters, prosecutors enjoy disproportionate power both in local politics and at the Lege.

There's a little time - not much, but a little - to figure out the best approach to confront prosecutorial misconduct in the current political environment before the 83rd Texas Legislature is upon us. See Grits' greatest hit list of ideas on possible legislative solutions to prosecutorial misconduct, and let me know what other clever suggestions you come up with, in the comments or via email. There's bound to be a way to skin this cat that'll satisfy everybody across the political spectrum, or at least everyone who's not just fundamentally against cat skinning in the first place.