Thursday, March 22, 2012

Prosecutor Misconduct Roundup: 60 Minutes to feature Michael Morton exoneration Sunday

The TV news show 60 Minutes will broadcast a segment about Michael Morton's exoneration and the struggle to hold Williamson County prosecutors accountable through a court of inquiry this Sunday, March 25 (6:00-7:00 PM, CT) on CBS.

Relatedly, the blog Wilco Watchdog has been diligently chronicling Williamson County DA John Bradley's re-election foibles, including a recent rumpus with a local police union that endorsed his opponent and accused Bradley of misrepresenting their political motives.

That is a hot, hot DA's primary fight in Williamson County. So despite his latter-day conversion, another turn in the barrel for the Michael Morton case in the national media likely won't do Bradley's re-election campaign much good. The man fought for years to keep Mr. Morton from getting exculpatory evidence tested, a record that earned him the distinction of Worst American Prosecutor of 2011, according to a reader poll at The Agitator blog. And Judge Ken Anderson, the former DA accused of withholding evidence in Morton's case 25 years ago, is Bradley's patron, mentor and even sometime writing partner, though JB now says they're on the outs.

Hopefully coverage on the respected 60 Minutes will also ratchet up pressure for reforms at the Texas Legislature next year aimed at stemming prosecutorial misconduct - a subject on which Grits has been compiling reform suggestions. Bradley's future isn't nearly as important as whether the state learns from mistakes like this or allows prosecutors to throw up a smokescreens to prevent legislative intervention. It's clear the courts and/or existing statutes aren't up to the task, so if one wants stronger incentives for prosecutors to play by the rules, the legislative branch is perhaps the best hope.

Finally, I wanted to alert readers in Austin to a timely event on this topic that Grits plans to attend:
Prosecutorial Oversight: A national dialogue in the wake of Connick v. Thompson

Thursday, March 29, 2012
1:30 to 3:30 PM
Francis Auditorium
University of Texas School of Law – Austin, Texas

Please join us for the Texas stop of a national tour to address the issue of prosecutorial oversight.  The Supreme Court’s recent decision in Connick v. Thompson rejected civil liability for Brady violations in lieu of what it took to be effective status quo mechanisms for training, supervising, and remediating prosecutorial disclosure issues. A discussion followed by Q&A will address existing oversight mechanisms in Texas, assess their adequacy, and explore possible avenues of reform.

Speakers include:
  • Betty Blackwell – Attorney, former chair of the Texas Commission for Lawyer Discipline
  • Jennifer Laurin (moderator) – Assistant Professor, University of Texas School of Law
  • Jim Leitner  - First Assistant District Attorney, Harris County
  • Michael Morton – Freed after 25 years in prison in Texas following DNA exoneration and revelation of concealed exculpatory evidence
  • Hon. Bob Perkins (Ret.) – Former judge, 331st District Court, Travis County
  • Professor Robert Schuwerk – Professor, University of Houston Law Center, author of leading treatise on Texas rules of professional conduct
  • John Thompson – Founder and Director of Resurrection After Exoneration and Voices of Innocence and plaintiff in Thompson v. Connick, imprisoned in Louisiana for 18 years (14 on death row), freed after revelation of concealed exculpatory evidence
  • Emily West – Research Director, The Innocence Project
The event is free and open to the public, but RSVPs are encouraged. Please register by Tuesday, March 27 by emailing
Event moderator Jennifer Laurin, I notice, has an academic paper on Connick v. Thompson which must also go on Grits' reading list.


Anonymous said...

"Bradley's future isn't nearly as important as whether the state learns from mistakes like this or allows prosecutors to throw up a smokescreens to prevent legislative intervention."

Grits, I disagree. Bradley's future IS importnat because he is so heavy handed in the state legislature. So making sure he is "dismissed" from office is a step forward to seeing the legislature is not intimidated into NOT doing the right thing.

Gritsforbreakfast said...

Don't get me wrong, if I lived in Williamson County I'd be voting for Jana Duty in the GOP primary. But if this and other recent cases resulted in concrete legislative reforms that, say, mandated open files or established liability for prosecutor misconduct, that would have a far more permanent impact.

No matter what, Bradley won't be here forever and in any event practices in just one county. Change the law, though, and that can impact cases statewide for generations.

Lee said...

There is a special place in hell for 99% of Texas Prosecutors.

Gritsforbreakfast said...

IMO probably less than 10%, Lee, cause most of the problems, but their impact is disproportionate when they're promoted to supervisor or, as in Williamson County, elected to high office as a reward for such behavior.

Anonymous said...

I think civil liability for prosecutor misconduct is a great idea! Just look at the positive contributions that plaintiff's lawyers have made to the medical profession. Prosecutors should be forced to purchase expensive E & O coverage just like doctors--even if the taxpayers have to pay for it. I think with every decision prosecutors make, they should have to make those decisions with a view toward whether they may be sued if they lose the case. At a minimum this might at least discourage the prosecution of those who commit crimes but who have the financial wherewithal to hire a trial lawyer and threaten civil litigation. It's not enough that we have a jury system and a beyond a reasonable doubt burden of proof, we need to weaken criminal prosecution because it is too effective. Too many criminals are being convicted! Never mind that there are ZERO reliable studies showing any significant evidence of systemic INTENTIONAL prosecutor misconduct. A few anecdotal bad apples is more than enough justification to attack and reduce the effectiveness of prosecutorial independence--a concept which has only existed since the drafting of the Magna Carta!

Gritsforbreakfast said...

8:13, Plaintiffs lawyers have made the medical profession a LOT safer, actually, in countless ways. The issue of reducing staph and drug-resistant infections by improving hospital practices comes to mind. Wouldn't have happened without litigation.

Also, it's not accurate to say there are no studies documenting problems with prosecutorial misconduct. Here's coverage of a prominent recent one.

Finally, nobody said prosecutors should be sued every time they lose a case, which would be absurd (always easier to argue against red herrings and straw men, isn't it?) but maybe it's okay to sue them when they engage in intentional misconduct.

Anonymous said...

The California Innocence Project "study" that you refer to has been roundly discredited for including instances of mere prosecutorial error as claims of "prosecutor misconduct." In fact, the media report that you link to specifically references improper questions asked during trial. I would suggest that evidentiary rule violations made during the heat of trial are a far cry the Brady violation claims asserted in Morton. But then again, if your objective is to systematically weaken criminal prosecution across then board, then why not paint with a really broad brush. I'd be interested to know how you define "prosecutorial misconduct," Grits.

Anonymous said...

Incidentally, you yourself have advocated using claims of prosecutorial misconduct as a tactic to obtain post-conviction relief. If you open the door to civil liability in those instances, what makes you think that that civil litigation, or the threat thereof, won't be used to deter prosecutions on the front end, or in retaliation following an acquittal? What's the difference between permitting civil liability after a post-conviction finding of innocence by a court, and after a not guilty verdict by a jury? Really.

Oh, by the way, I'm not surprised that you'd be supportive of personal injury plaintiff's lawyers. They've driven malpractice insurance costs for doctors through the roof, increased the costs of health care for everyone, inspired tort reform in Texas and ultimately Obamacare. What a blessing they have been for our health care system...NOT!

The Homeless Cowboy said...

Man, You've gotta love the anons who have these really strong opinions but, are reluctant to use their name, mine is on my profile, If you want it just ask.
IMO the issue of proprietorial misconduct is a two headed monster. on one side we have the ADA who simply messes up and botches someones life up. These kinds of cases should be handled as civil lawsuits with both the county or State as the case may be AND the prosecutor personally being held responsible for civil damages as well as by the Bar Association as needed. On the other hand Intentional misconduct by an ADA or other prosecutor should be dealt with as a criminal offense. It is most nearly the crime of Kidnapping, no different than is a person hired someone to hold a person for whatever reason. If a prosecutor causes police to arrest and detain a person especially when they have exculpatory evidence, then I ask What is the difference? I think the offending prosecutor should lose their legal privileges for life, and be subject to criminal prosecution in a different county so as not to suborn collusion. Furthermore the State should be responsible monetarily to the offended party. Nothing that is done can give a person their life back, those years are gone. The offending prosecutor now gets to say "Gee sorry about that" and go home to dinner without another thought? I don't think so.

Phillip Baker said...

Clearly Anon 8:13 has drunk deep of the "law and order" Koolaid. OK, medical malpractice- to start with about 95% of all malpractice suits never make it to court. Most are recognized as frivolous, some are settled by insurance on the theory it is cheaper to settle than fight. Take your argument to insurance companies. Tort "reform" then becomes a wall to protect even egregious, preventable actions by certain doctors who should- but won't- be dealt with by the Board of Medical Examiners. As it is, unless there is the probability of a large settlement, the average person has NO chance of filing a suit or winning. So bad doctors go on maiming patients with no consequences.

As to prosecutors, Anon 8:13, you should check out the blog "Wrongful Convictions". If you allow yourself the tiniest bit of open mind, you'll be appalled at how common prosecutorial misconduct actually is. Not talking good faith mistakes, but deliberate violations of law to get convictions.

I'll be watching that 60 Minutes with Mike Morton and others on Sunday. I hope it is hard-hitting! It is far past time for top to bottom reform of our justice system.

Finally, have the integrity and cajones to post with a name. Hiding behind "anon" just makes you sound like a shill for Bradley- or even Bradley himself. (BTW, I (and others) posted negative comments on Bradley's FB page. They were scrubbed within hours.

Anonymous said...

I think a better solution, HC, would be to just not have prosecutors or courts at all. I'm sure you'd be fine with going back to the days of vigilante justice, lynch mobs, "shoot first ask questions later,"... you know, that whole "eye for an eye thing." That approach seems to be working pretty well in Florida right now, huh? Whaddya say?

The Homeless Cowboy said...

Well 12:37 I really think they should just be held to the standard I or anyone else would. You obviously are a prosecutor afraid to use a legit login and be identified as a scared little rabbit hiding behind your Im a big mean prosecutor alter ego. Hold on I called a WWaaahmbulance they should be there to help you soon. Have a great day.

Anonymous said...

Actually, there have been multiple studies that have looked at the frequency of prosecutorial misconduct

The frequency with which prosecutorial misconduct occurs is difficult to measure. Many cases of misconduct go undiscovered. “Sniffing out misconduct can be a matter of serendipity—or luck . . ..” Misconduct is often identified at trial, and only a small fraction of criminal cases go to trial. Furthermore, misconduct may even occur in cases that are resolved by guilty pleas. “Many of the types of misconduct . . . could happen every day, and we’d never know about it if the defendants plead out.” “[S]hort of visiting every courthouse in the country, there is no way to determine how many cases are dismissed or ruled mistrials by trial judges (and thus never reaching the appellate courts) because of a prosecutor’s misconduct.” The difficulty of identifying misconduct is compounded because some appellate rulings are unpublished and those that are published rarely identify the trial prosecutor.
Researchers and authors have studied the problem since 1932. A recent USA Today article examined the problem at the federal level. The authors documented 201 criminal cases in which judges determined that Justice Department prosecutors had violated laws or ethics rules. In each of these 201 cases, federal “judges threw out charges, overturned convictions, or rebuked prosecutors for misconduct.” In 2009, the Justice Department internally investigated 61 complaints made by judges about misconduct on the part of federal prosecutors. Despite all of these complaints, state bar records reveal that, in the past 12 years, only one federal prosecutor has been barred from practicing law. In its investigation, “USA Today found a pattern of ‘serious, glaring misconduct.’” The article quotes an expert on the issue who said, “It’s systemic now, and . . . the system is not able to control this type of behavior. There is no accountability.”
The Center for Public Integrity found 2012 cases in which “individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences . . ..” “In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion . . ..” “In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using the doctrine of ‘harmless error.’”
In 1999, the Chicago Tribune found 381 cases, going back to 1963, where prosecutors obtained homicide convictions by hiding exculpatory evidence, presenting evidence they knew to be false, and allowing witnesses to lie. Later in 1999, the Tribune identified 326 reversals in death penalty cases that were attributed in whole or part to prosecutorial misconduct.
Even when misconduct is revealed, convictions are rarely reversed. In an analysis of 11,452 cases in which appellate court judges reviewed charges of prosecutorial misconduct, the Center for Public Integrity found that the appellate judges typically ruled the misconduct was typically ruled to be harmless error or they did not address it. “The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club.”
One writer put it this way: “[p]rosecutorial misconduct has reached epidemic proportions and, like a disease, cuts across geographic and socio-economic boundaries to infect the criminal justice system.”

Anonymous said...

THis is anon 11:57 continued:

In spite of all this, 8:13 will never acknowledge the seriousness of the problem. He has some stake in maintaining the statuts quo. It is undeniable (to anyone capable of looking at the issue objectively) that prosecutorial misonduct is a serious and pervasive problem. Every time the issue is raised we here this "sky is going to fall" rhetoric. He wants to compare the problem to the medical profession but a more apt comparison is to police officers. Police officers are required to make split second life and death decisions, yet we only give them qualified immunity. Why should prosecutors, who have time to deliberate about their actions, have more protection. Qualified immunity still provides a high level of protection and under qualified immunity many, many meritorious cases are dismissed because it is a very high bar for a plaintiff to overcome. So, if we scale back prosecutor's immunity to the same type of protection that police officers have, the sky isn't going to fall.

Furthermore, 8:13's comment attempting to imply that proseuctorial immunity has existed since the magna carta is simply ignorant. If he cared to actually study the issue he makes such ignorant statements about he would see that prosecutors did not have absolute immunity at commmon law. They only had immunity for words they said in court, as did other attorneys. They could be sued for malicious prosecution. Absolute prosecutorial misconduct is a relatively modern development. So, 8:13, maybe you should actually study the issues before making completely ignorant and false statements such as your assertion that there are ZERO studies showing it to be a serious problem.

Finally, 8:13. How about offering other solutions. If you believe that prosecutors need absolute immunity, what are some other ways to prevent and discourage misconduct? What do you suggest?