Thursday, July 05, 2012

'Brady violations' sometimes stem from police misconduct instead of prosecutors

The Dallas Observer this week has its own analysis of prosecutorial misconduct in Texas innocence cases by Leslie Minora titled, "When innocent prisoners finally go free, their prosecutors do, too." As with the Texas Tribune's story today, it focuses mostly on anecdotes of prosecutor misconduct arising from Texas exonerations. Your correspondent was briefly quoted in the story:
"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."
One of the examples mentioned by Minora was Kerry Max Cook, who has not yet been formally exonerated but was unquestionably the victim of prosecutor misconduct. The story quoted from a 1996 Court of Criminal Appeals opinion declaring, "the State's misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State over a 14-year period — from the initial discovery proceedings in 1977 through the first trial in 1978 and continuing with the concealment of misconduct until 1992."

The Observer story also hones in on an underlying issue that's less frequently discussed - police withholding exculpatory evidence not just from the defense but from the prosecution team. "While police give prosecutors a thin file of relevant information, the complete, fat file stays in the department with documents that may be useful" or sometimes, exculpatory.

Prosecutors are obligated to hand over all exculpatory evidence and the courts consider "Brady" material any exculpatory evidence held by any government agent, not just what's in the prosecutor's file. When police fail to hand over exculpatory evidence, it will still be dubbed a "Brady violation" and hence prosecutorial misconduct in court, but in some cases the prosecutor may be unaware the evidence exists. Shannon Edmonds of the Texas District and County Attorneys Association recently told Grits that, according to an internal review, about half of Brady violations stem from prosecutors withholding evidence and the rest from police never giving the information to prosecutors in the first place.

Obviously Grits doesn't believe prosecutors should be sanctioned by the State Bar unless they knowingly withheld evidence. But since they rarely punish prosecutors, the much greater problem is that, even when knowing violations are committed - and even when they're acknowledged by appellate courts as in Kerry Max Cook's case - prosecutors still face no consequences. Edmonds' boss, Rob Kepple, told Minora he thinks the term prosecutorial misconduct is "used too broadly" to include mere mistakes. That may be true in some instances, but from an official perspective, Grits believes the State Bar in particular doesn't apply the term nearly often enough.


rodsmith said...

well dear old Ron can kiss my ass. What this DOES prove is his honorable DA's are in fact's just AFTER THE FACT. If they know this is happening well then where are the prosecutions for all these CRIMINAL COPS for failure to follow the law? The DA's after all claim they can indite a ham sandwich if they again where are the prosecutions for allt hese dirty cops who are hiding evidence?

if they DA's don't want to be blamed then they need to get off their asses and clean their own dirty house!

Anonymous said...

"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson.

How do you figure that? The burden of proof is still beyond a reasonable doubt. If anything, jurors have become more sophisticated in their expectation of technology in the courtroom. The legislature has recently expanded the use of post-conviction DNA testing. Texas has one of the most generous compensation systems in the country for the wrongfully convicted.

In 1995, the Supreme Court, in Kyles v. Whitley, extended the reach of Brady to include exculpatory material known to law enforcement but not known to prosecutors; so now prosecutors have to be extra careful in making sure all evidence is turned over by law enforcement agencies.

The Legislature just passed eyewitness ID reform which will go into effect later this year.

Limits have been placed upon the use of confidential informant and accomplice witness testimony.

Texas already has one of the more stringent "in custody" confession statutes requiring that confessions be written or recorded.

The number of death penalty prosecutions has reduced dramatically due to the advent of life without parole and the Supreme Court decisions prohibiting the execution of 17 year olds and the mentally retarded.

Prosecutors can be and are still sued in federal court under 42 U.S.C. Sec. 1983 and only have qualified immunity for their actions in many instances.

Nearly every case involving a questionable or overturned conviction on the thread below identified in the Texas Tribune study involve cases which are decades old.

If anything, I think the power of prosecutors is weaker now than it's been at any time since the founding of this country.

Ryan Paige said...

If prosecutors should be excused for "mere mistakes", then certainly any prosecutor would refuse to charge any private citizen for any crime that resulted from a mere mistake, too, right?

Anonymous said...

"The burden of proof is still beyond a reasonable doubt."

If you believe that...well....

ckikerintulia said...

"Innocent until proven guilty beyond reasonable doubt" is an idealistic myth. A pool of jurors largely consider that anyone arrested by the police and indicted by a grand jury musta done it. It takes a lot of proof of innocence to overturn that pre-consideration of guilt.

Lee said...

Beyond a reasonable doubt is like getting 75% of it correct. We need to change it to be beyond COMPLETE doubt. Pretty sure may have been the best that could be done in earlier generations, but it is not good enough anymore.

Anonymous said...

@Lee...I'm sure lots of criminals would go for that!

Anonymous said...

These prosecutors are funny. When someone claims to be innocent these guys are always scoffing and say that that is what they all say (even though that's not necessarily true). Well, when they are caught misbehaving, what do they do? Waaaa, it was an accident, I didn't do anything wrong. They claim to be innocent. We shouldn't believe them anymore than they believe anyone else who claims to be innocent. Let's treat prosecutors the way they treat people - you are guilty until you prove you are innocent Mr. Prosecutor. What a bunch of hypocrites.

Anonymous said...

Prosecutors are the criminal class.

Anonymous said...

This is a growing problem, sometimes DAs are "in on it" but more frequently they just don't ask too forcefully. At the federal FLETC, for example, law enforcement is frequently trained/encouraged to keep things out of their reports and not to inform prosecutors unless specifically asked. (As an example, if GPS tracking was used by law enforcement). This prevents legal challenges to certain LE practices from ever being raised in court -- and the LE view is "it is legal until a judge says it ain't".

A defense attorney can ask a judge to order the DA to specifically inquire with the cops about such things. The emphasis is on "you can ask", you normally won't get it. You are seeing (more frequently, IMHO) DAs hedging their answers to the court with statements like "to the best of my knowledge" or "in my file" -- and they will forcefully object to any attempt to order them to enquire more broadly of their cops.

It is an institutional problem - law enforcement increasingly sees adverse court rulings as undue hindrance and not legal guidance,a nd thus seeks to minimize having courts review (or even know about) things. And since DAs are "officers of the court" they are increasingly being excluded, as well.

Anonymous said...

Let's not let prosecutors off the hook here. There is plenty of misconduct initiated by prosecutors. In the Kerry Max Cook case it was the DA who coerced the cop to lie about the fingerprints. In Anthony Graves case it was the DA who persuaded the killer to maintain his lie in court and withheld the evidence. More recently, in the Mineola Swingers case it was the DA who withheld the existence of the prior interviews. I have no doubt that law enforcement does withhold things from the prosecutors. However, just as often, prosecutors have evidence that they intentionally withhold. And, I know that prosecutors have sometimes instructed law enforcment to keep things out of the "file." We have many, many examples where prosecutors have chosen to withhold evidence, manipulated and coerced witnesses, etc. McGhee v Pottawattamie County, Thompson v. Connick, the other recent SCOTUS criminal appeal from New Orleans that I can't think of the name of....

I have no doubt law enforcement does these things...but, it sppears that prosecutors are attempting to adopt the strategy of blaming the cops. Don't let them get away with it.

Its time to do away with absolute prosecutorial immunity. Sure the prosecutors will whine and cry and run around like chicken little claiming the sky will fall - don't believe it.

Anonymous said...

@12:10... I wish you would try to identify the "many, many" cases of prosecutor misconduct cases you claim exists. Ms. Grissom could only identify 17 cases in a nearly 30 year time frame and several of those did not involve an intention failure to disclose evidence.

What you have here is patently transparent agenda by some parts of the liberal media and those who sympathize with the criminal element who want to weaken a criminal justice system in this state which is too effective for their liking.

Not saying that intentional misconduct by prosecutors doesn't occur--as it does in any profession--it's just that the incidence of it is so statistically remote that one has a better chance of winning the mega-millions lottery than one does of being a victim of a cheating prosecutor.

As far as prosecutor immunity goes, the unintelligent and incendiary rhetoric on this blog is the prime example of why absolute immunity for prosecutors is needed. Prosecutors, by the very nature of their jobs, piss lots of very evil people off. What a wonderful resource it would be for robbers, rapists, murderers, child molesters, etc.--and especially those wealthy enough to hire a plaintiff's lawyer--if they could just file a lawsuit any time they were being investigated or prosecuted. Yep, if I'm a criminal, I'm thinking that's a great idea!

Anonymous said...

12;57 said:
"What you have here is patently transparent agenda by some parts of the liberal media and those who sympathize with the criminal element who want to weaken a criminal justice system . . . ."

All these stories promoting "no-snitching" also are designed to protect the criminals.

Thomas R. Griffith said...

Hey Gris, check out what the former ADA said in the tick tock babble 12:57 time warp.

If anyone replies to the krapola, please turn him on to the IPOT, IP, Innocence Network & GFB Archives for starters.

Since he's wanting specifics, here's just one of the many ignored cases -
*Former career ADA Mr. Casey J. O'Brien aka: 'jigmeister'
(The King of Nolo Contendre) is on record prosecuting white people for a crime in which black skinned, black haired suspects were described moments afterwards. He filed five "Ready for Trial" notices only to stop a jury trial to plea bargain with a probationer.

This is not a case of misconduct or making a mistake, it's a 'crime' / 'Criminal Conduct' that began with a false arrest on a non-existent outstanding traffic warrant that morphed into a wrongful conviction just for being on probation at time of arrest.
He even brought his own gun to court (a .38 with a 5 or 6 inch barrel) to substitute for a .22 or .25 with a 2 inch barrel in a case where no weapons existed!

It didn’t make headlines or warrant assistance from any of the 'Projects' due to the order in which the skin color is arranged and not hinging on DNA. Thanks.

Thomas R. Griffith said...

Gris? Sorry about that.

Anonymous said...

"Yep, if I'm a criminal, I'm thinking that's a great idea!"

I just bet that 12:57 is one of the prosecutors who withholds evidence, coerces witnesses, etc. So, 12:57, guess what? You are a criminal. Even if you are not one of those prosecutors, which I'm pretty sure you are, you are advocating to protect those types of prosecutors. So, you are advocating for criminals. You advocate that criminals maintain absolute immunity for their criminal conduct. You believe that this particular class of criminals should remain above the law. So, you are just a criminal advocating for criminals. You just seem to prefer one type of criminal over another type.

I really, really hate to say this, but honestly, I hope you find yourself a victim of prosecutorial misconduct one day. I know you think it couldn't happen to you, but I really hope it does. That would be true justice.

One more thing...your attempts to say it is rare...well, that is just plain willful blindness and stupidity. Yes, there are many, many cases and they are well known. I could list them but, frankly, I don't have the time or desire and no matter how many I listed it would not be enough because you refuse to see or admit the truth. You know the cases. You've heard of many, many of them. But, you see, even when the evidence is right before you you don't see it. You look at a case of actual innocence and maybe, intellectually you'll acknowledge that the system screwed up. But, in the back of your mind you really don't believe it. You believe the person was probably guilty anyway, somehow, or that they were guilty of someothing else and deserved what they got. So, you'll never see the truth unless, by some miracle, the scales are removed from your eyes. And, I'm not a miracle worker.

Anonymous said...

Isn't it odd how people who can't articulate a reasoned, fact based response often resort to ad hominem attacks on people they are trying to debate? No one called you a criminal 3:48. But it's pretty obvious that you are at least soft on crime and sympathetic to those selfish people in our society who prey upon and victimize others. I'm sorry, but I've just never been able to understand the reasoning behind that.

In Texas, out of the MILLIONS of cases that have been prosecuted over the last couple of decades, there have been reported to be 17, yes, SEVENTEEN cases of prosecutor misconduct! And a number of those were not intentional acts. If we were talking about a disease here, the Center for Disease Control wouldn't even be worrying about such a statistically improbable illness. And yet because there have been 2, or maybe 3, media worthy instances in Texas of potential prosecutor transgressions (keep in mind that the Morton Court of Inquiry still hasn't been held and Kerry Max Cook did enter a no contest plea)there are people on this blog labeling all prosecutors are "criminals" and wanting to totally reform a system that has been effectively reducing crime rates for over 20 years now.

As a tax paying, law-abiding citizen who wants children and families in Texas to be safe, I don't think the system is broke. It may not be perfect and mistakes may very well have occurred but I really do question the motives of those promoting all of this "accountability" and "reform."

I think this whole issue falls squarely into the category of "if it ain't broke, don't fix it."

Anonymous said...

5:14 - You have yet to make a "reasoned, fact-based" argument here. You are quite the hypocrite. You are the one who always, always resorts to labels - "liberal" and you always, always "attack" (to use your words) those who believe in fairness and justice by saying they want to let all the criminals loose, etc. I can't help but wonder, do you even listen to yourself to see how absurd and just downright ignorant you sound.

I have made reasoned, fact based arguments to your illogical rants here in the past. On one occasion I posted statistics and quotes from articles with sources. But, I suspect you didn't bother to look at those sources, did you? So, why should I waste my time doing that again. Its like arguing with a fence post. You are only going to hear what you want to hear and will ignore anything else. For example, that 17 number you keep throwing out - Are you actually asserting that that is all the instances of prosecutorial misconduct. That is the most absurd assertion I have ever seen by anyone anywhere. Honestly, the flaw in your logic is so obvious it is ridiculous to expect anyone to explain it to you. If you really believe that 17represents even a tiny fraction of the cases of misconduct you, my friend, are beyond ignorant, you are suffering from a full blown delusion. Your statments are just so far outside of any logic, its just beyond me how you can even believe them. It's just amazing how bias can blind a person that much, truly amazing. I can't believe you are really that ignorant. That's what makes me suspect you are the type of proseuctor who commits misconduct. Tell us - how often do you withhold what you know to be exculpatory evidence? How many witnesses have you coerced? Ever fabricated evidence? I bet you've done all those things. Come on, your anonymous here, tell us. I'm sure each time you had a justifiable reason.

I'm not going to waste my time posting the sources and statistics I posted before. You'll just ignore them like before. It is beyond dispute (by any rational, thinking person) that this is a serious and pervasive problem. I have spent time researching and studying the issue,actually quite a bit of time. Now, how much time have you spent? How many articles or studies have you read?

If you really want to discuss the issue intelligently, go and do some research yourself - read some articles, studies, look at the many, many cases that you deny exist. Then come back here and tell us what you found. I doubt you have the courage to do that. I've given you the sources before. Now, go look at them. Educate yourself a little. Do a little research. Acquire a little knowledge. Then we can talk.

Anonymous said...

Question for lawyers-

Does Brady Material apply to pre-trial plea bargaining purposes (i.e. greater that 95% of all criminal cases)?

Perhaps this is a means of the LE to "get justice" without a judge/jury trial?

Anonymous said...

@8:03, Brady actually only applies to cases which go to trial. With that said, the Texas Rules of Disciplinary Procedure are more broad and have more expansive disclosure requirements regarding exculpatory and mitigating evidence.

What you won't hear reported on this site, or in biased reporting like what you have seen recently in the Texas Tribune, is how nearly every prosecutor's office in Texas now has an open file policy. That was not so 20-30 years ago when the vast majority of the problem convictions on the "exonerated" list occurred.

Does anyone find it odd that with all of this rampant prosecutorial misconduct, only 3 cases prosecuted in Texas since 2000 have resulted in exonerations? And in one of those, the prosecutor joined the defense in asking that the conviction be set aside. Could it be that with improvements in DNA testing and better practices in eyewitness identification procedures, the potential for mistakes has been greatly reduced?

Of course, none of this will matter to those who simply desire to weaken our criminal justice system to the point it becomes ineffective, I guess.

Anonymous said...

Spoken like a true prosecutor 9:15.

Nearly every prosecutors office has a open file policy?
LAUGHABLE! Show me your list!

Could it be that with improvements in DNA testing and better practices in eyewitness identification procedures, the potential for mistakes has been greatly reduced?

YEAH, it's making you shady bastards do your job!

Anonymous said...


Violations of the Texas Rules of Disciplinary Procedure aren't legally binding or associated with criminal penalties (i.e. jail time), right?

And, the TRDP are dictated by the State Bar, right?

And, while Prosecutors may have an open file policy, LE doesn't, right?

And the definition for "exculpatory" is subjective, right?

I think these are the points of this particular subject and news reports. These are the weak links where transparency needs improvement.

Anonymous said...

"...Shannon Edmonds of the Texas District and County Attorneys Association recently told Grits that, according to an internal review, about half of Brady violations stem from prosecutors withholding evidence and the rest from police never giving the information to prosecutors in the first place..."

She forgot about the errors in the crime labs which go unreported and could be used as impeachment material, credibility issues, competency problems, lost evidence or lab reports, etc.

Anonymous said...

"Open File Policies" are not always what they're cracked up to be - the Tarrant County one requires defense counsel not to give the client any of the disclosed documents (even though it's the client's liberty at stake) and forbids counsel from filing Public Information Act requests, cutting off areas for potential investigation. And it makes defense counsel a "trustee" for the DA's office (conflict of interest, anyone?) who must return the discovery on demand. This runs contrary to the ethics rules which says that the papers acquired during representation are the client's. In addition to these problems, trial counsel can try to insulate themselves from habeas review by returning the discovery to the DA's office, which will strenuously resist disclosure. So, not so open after all ... and more to do with engineering swift pleas and upholding convictions than any real spirit of transparency, one suspects.

Anonymous said...

Oh certainly, it would be a GREAT idea to let criminal defendants have information out of police reports including names, addresses, and phone numbers for victims and witnesses. That would sure be especially nice in sexual assault cases, aggravated robberies, gang related and other violent crimes, right? That would just make everyone SO much more comfortable reporting crime or getting involved as witnesses, wouldn't it?

Anonymous said...

Victims and witnesses are not the ones we are concerned about.

Anonymous said...

I go to trial in the morning in a case where the police have failed to make the DA's office aware of several pieces of exculpatory evidence. Unfortunately, I see it over and over again. I'll keep you posted on the outcome...

Anonymous said...

I go to trial in the morning in a case where the police have failed to make the DA's office aware of several pieces of exculpatory evidence. Unfortunately, I see it over and over again. I'll keep you posted on the outcome...

Anonymous said...

To Anonymous who said

"f anything, I think the power of prosecutors is weaker now than it's been at any time since the founding of this country."

Uhm prosecutors didn't exist at the founding of this country. Neither did police. They didn't exist until the late 1800's.

Anonymous said...

This is a good place to stick this.

dozens of police commit felonies every day. That's just the ones that get caught and make it into the news.

BTW. It isn't "guilt beyond a reasonable doubt".

rodsmith said...

well 11:17 if you know the evidence they have not revealed and the witnesses they have not told you about?

I'd be setting the little crooks up and sandbagk their asses in the court room. Once under oath have they state for the record you have all they have....THEN BRING THEM IN YOURSELF.

Then at that point demand criminal sanctions against anyone involved! from the judge and inform him/her you will get it from them or after you GO OVER THEIR HEAD!