Thursday, August 23, 2012

Prosecutor misconduct roundup: 'Will Texas Republicans line up against prosecutorial misconduct?'

Grits wanted to point out to readers recent media items related to prosecutorial misconduct. First, from the Dallas News' Opinion Blog, see Rodger Jones posing the question, "Will Texas Republicans line up against prosecutorial misconduct?" All I can say is, "They should." Any critic of Big Government who fails to admit that prosecutorial power has exceeded its proper scope either is being disingenuous or simply not paying attention. Over the past few decades, prosecutors have been given so many additional hammers with which to pound defendants into submission - causing the percentage of cases going to trial to plummet to the low single digits - that Texas' Penal Code has begun to resemble a toolshed belonging to J.R.R. Tolkien's dwarves.

Reacting to a  GOP state rep candidate's call in a questionnaire for greater accountability for prosecutors, Jones asked, "The tea party has been expert at raising questions about the size and reach of government. Why should that not pertain to matters of justice as well?" "Why?" indeed! I've never understood why so many self-styled conservatives give police and prosecutors a pass when critiquing government overreach. Grits has come to the conclusion that the issue is perhaps the main distinguishing factor between "Big Government Conservatives" and those who favor "less government" in reality and not only in their rhetoric.

Earlier this month, Jacob Sullum at Reason offered up the story of a federal prosecutor in Arizona who misrepresented a defendant's past statements in court. Appellate "Judge Donald Walter remarked, 'In eight years as U.S. Attorney and 26 years on the trial bench, this is the worst I've ever seen from an assistant U.S. attorney.'" (If he'd practiced in Texas, Judge Walter surely would have seen far worse, if he'd paid heed.)

The New York Times earlier this week in its "Room for Debate" series posed the question, "Do prosecutors have too much power?," featuring short essays on the subject from five guest authors. Focusing mostly on the federal system (though the same quarrels could apply to state statutes), criticisms chiefly centered on the effect of mandatory minimums, which caused the traditional charging powers of prosecutors to morph into de facto sentencing authority, pilfering power bit by bit from judges and juries. The series followed up on a staff editorial by the paper about a New York case in which prosecutors allegedly suborned perjured testimony by a confidential informant.

Another NY Times editorial this week argued that "Prosecutors are rarely punished for wrongdoing. Other sanctions like a reprimand from a bar association, are largely ineffective." The paper argued that defendants should be compensated when courts find federal prosecutors have acted in bad faith as "a check against gross misconduct." See more on the subject from the Blog of Legal Times.


Anonymous said...

So now we're wanting the New York Times to set criminal justice policy in Texas? How nice. I'm sure THAT will go over good with the Texas Legislature.

This whole discussion reminds me a little of the controversy over Mitt Romney's tax rate. Does anyone seriously believe that Romney should do anything other than pay the rate imposed on him by the Tax Code--the rate established by Congress?

Same thing with prosecutors. Prosecutors can only enforce those penal laws passed by Congress or the state legislatures. If you're unhappy because you think too many laws are being enforced, then use the democratic process to repeal the laws you disagree with. If you think the rules of criminal procedure or evidence make it too easy to get convictions, then use the democratic process to make it more difficult to convict people.

But to sit up here and bitch because prosecutors are using the "tools" provided to them and implementing a "tough on crime" social policy that has enjoyed overwhelming public support for at least a couple of decades now; and to call it "misconduct;" is more than a little bit disingenuous, I think.

Daniel Simon.0 said...


The Texas Legislature passed a law over ten years ago making a Felony for either a parent or a guardian to deprive the other parent or guardian(s) of their court ordered possession and access.

This law is pretty much universally not enforced across Texas because Prosecutors refuse to prosecute citing "Prosecutorial discretion" and further they go so far as to impose policy on Law Enforcement to lie to the public and tell them it is a civil matter.

These criminals masquerading as prosecutors, should be themselves prosecuted as accessories and the victims of their crimes ought to be able to sue them into poverty!

Instead as it sits now, based not upon statues, but upon "case" "law" (pontifications of black robes shysters) they can exercise "discretion" (even though the code of criminal procedures provides they SHALL take and file complaints) AND are "immune from suit" for refusing to do their job.

Anonymous said...

Grits, the comments of Mr. Simon above are EXACTLY the reason prosecutors need significant discretion in the performance of their jobs and immunity from suit. Can you even begin to imagine the chaos that would result if the DA's were threatened with a civil lawsuit every time some pissed off momma wanted to file felony Interference With Child Custody charges against her ex-husband because he was 15 minutes late on Sunday evening bringing little Johnny or Susie back from his court ordered weekend visitation? This exactly the type of legislative overreach that winds up in the prosecutor's lap when, in fact, it should be worked out in family court. I don't know a single prosecutor who likes getting involved in these types of cases. But here again, the Legislature forces these types of laws on DA's and expects them to be enforced. And then when they are, prosecutors are accused of being "power hungry" or "oppressive" for just doing their jobs. Damned if you do, damned if you don't.

Anonymous said...

Most of the district attorneys in Texas are republicans, and as such, they do the bidding of their fellow republicans. Just like when two grand juries indicted the wife of Texas Supreme Court Justice David Medina for arson. Justice Medina had been Governor Perry's private counsel for years before Perry appointed him to the court so it was no problem for them to have the DAs, Chuck Rosenthal and, later, Pat Lykos, quash the indictments.

Republicans have a different view on justice than others do. And having a crooked DA in office is fine by them as long as it's a crooked REPUBLICAN DA.

From what I understand this was not the first home owned by the Medinas' that burned downed under suspicious circumstances either.

"When the going gets rough and you are in danger of foreclosure, grab a lighter"...

Gritsforbreakfast said...

8:11, I don't think the Texas state rep candidate quoted by Rodger Jones is following the NY Times' lead, but these issues aren't (or shouldn't be) merely partisan concerns.

OTOH, I think you're right comparing the mandatory minimum issue (though not the others cited) to Romney's tax returns. Nobody expects Romney to pay more than is required, nor prosecutors not to use the array of hammers provided them. The bigger and more important questions, though, are SHOULD Romney's tax rate be so low and SHOULD prosecutors have so many hammers? That's the real debate, and it's clearly one you're not prepared to engage in.

10:01, you know as well as I that those types of suits would never go forward under a qualified immunity standard, which is what's been advocated at the Texas Lege on this subject. To claim otherwise is disingenuous nonsense that is the type of thing prosecutors only ever say anonymously because you'd look like a fool putting your name on it. Unlike Mr. Simon, you've (presumably) got a law degree and should know better.

Anonymous said...

Prosecutorial discretion is the doctrine of doing whatever the flip they want and calling it legal. Selective prosecution is a tool, often political, without checks, a perfect storm of corruption.

Let me illustrate...

The Rockwall District Attorney Kenda Culpepper (R) has acknowledged criminal election violations of local Republican incumbents but will not take them to the Grand Jury. The Texas Secretary of State in Austin (R) has been notified and refuses to take action, stating lack of resources. See Rockwall County News, August 2, 2012.

Why this is particularly insidious is recently Craig Watkins (D) over in Dallas would not prosecute a Dallas JP Carlos Medrano (D) for election violations, however the State Attorney General (R) stepped in, MOVED THE CASE TO ROCKWALL, indicted and prosecuted multiple members of the Medrano family. So the state (R) has no lack of resources to prosecute dems...

Not prosecuting documented election crime to support your party and calling it "prosecutorial discretion" is nothing less than corruption.

A citizen has filed a complaint directly with the Rockwall Grand Jury requesting a special prosecutor. See Rockwall County news Aug 23 edition. Stay tuned.

Anonymous said...

Grits, you need to go study up on that qualified immunity. It might be of some benefit to government employees, but it sure won't keep them from being subjected to frivolous lawsuits and having to litigate them--at least to the point of a summary judgment. If you don't believe me, just ask all of the prison guards and officials who are routinely subjected to inmate lawsuits. How much do you plan on increasing the Attorney General's budget to defend all the suits that get filed against prosecutors by inmates who have nothing better to do than look for ways to get out of prison?

Phillip Baker said...

Wow, Anonymous 8:11. You just totally missed the point didn't you. Prosecutors wield enormous and virtually unchecked power over people's lives. I fully expect them to use the "tools" given them by law. But they use "tools" never sanctioned by law. Many use the law as their own personal weapon, coming down hard of people or groups they dislike, crushing individuals individuals who have dared to oppose/anger them.And for this they get absolute immunity!

Prosecutorial discretion is one of those tools. For decades prosecutors did not charge people for spitting on the street, though that was against the law. And in he said/she said disputes without corroborating evidence for either side, they rightly save the people money by not prosecuting.

BUT...Over and over prosecutors have been proven to have lied in court, falsified evidence, coerced witnesses, planted testimony in a helpful snitch. Then there is the matter of over-charging. A guy gets arrested for something. The DA wants a conviction for whatever reason. So he knowingly charges a far, far more serious crime than what actually happened. That guy may be fully innocent, but...he knows most people simply assume that cops don't arrest anybody unless they have solid evidence against them (Demonstrably not true), that the DA is fairly applying the law, and that he has an appointed lawyers who could not care less and who he meets minutes before his hearing in one of the cattle call processses that happen in every criminal court in this state daily. He also knows, because the prosecutor has emphatically told him so, that if he is convicted, he will get the maximum for the trumped charge. Many thousands of people every year take a guilty plea for fear of losing a court trial with the deck stacked against him. This is justice? This is the vaunted "rule of law" we so loudly proclaim to believe in? No, is it a corrupted system that values convictions over justice, an the truth be damned. It's all fine and good to sit back in your comfy life and side with dirty DA's. But when your child/spouse/friend or yourself face this system, be ready to sell everything you have built up over you lifetime of work to pay for your defense. And if acquitted, you do not get a dime back, even if the DA lid outright and was called out by the judge! You need to think about reality instead of your beliefs.

Thomas R. Griffith said...

Hey Grits, not sure if you are aware of this or not. We learned via (DP) Defending People Blawg that Harris County has implemented MPB sessions.

Yes, folks, when you are talked out of a jury trial due to being on probation at time of arrest, that's ineffective assistance and prosecutorial misconduct all wrapped up in one. A it's the judge's finger on the bow.

Mass Plea Bargaining. No shit. Combine the "Tool" that the United States Supreme Court gifted to the DAs (basically saying let the cops arrest at will & plead 'em all) with this new "Tool" and no wonder we enjoy so much corruption in the courts.


Anonymous said...

Here the cry of the prosecutor: "The sky is falling! The sky is falling!"

Anonymous said...

In Saul Alinsky's Rules For Radicals:

Rule 12: Pick the target, freeze it, personalize it, and polarize it.

Anonymous said...

For a clear, detailed, documented abuse of Prosecutorial Discretion and Prosecutorial Misconduct, coupled with the most egregious Ineffective Assistance of Council case, go to

One woman has been fighting this for nearly 3 years, and recording everyone along the way. They successfully put an innocent woman in jail once already, attempted to do two more additional times, and we see a third attempt on the horizon.

Our Judicial system is completely out of control and we all need to be afraid, very afraid.

Anonymous said...

If prosecutors think that scaling back to qualified immunity is such a bad thing, they need to be proposing other solutions to the problem. Denying the problem won't cut it. If you are a prosecutor, let's hear some other solutions. My preference would be for criminal prosecution. Make these things crimes and create a position for a special prosecutor within the AGs office who would have the responsibility for investigating and prosecuting these crimes. Expecting the state bar to discipline prosecutors hasn't and won't work. Anytime you expect a profession to police its own it just doesn't work. So, prosecutors, instead of denial and whining about the immunity issue, lets hear some solutions.

Anonymous said...

Anonymous said...
In Saul Alinsky's Rules For Radicals:

Rule 12: Pick the target, freeze it, personalize it, and polarize it.

8/24/2012 10:51:00 PM

Are you saying that it is radical to believe the government officials should follow the rules and uphold the Consituttion? And that when they don't, they should be held accountable? Is that your definition of a "radical." I think your perspcctive there is pretty warped. Those who oppose allowing government officials unchecked power have more in common with the founding fathers than with Saul Alinsky.

The current situation where prosecutors have such enormous power and no accountablity is more akin to the totalitarian societies than to a society that is supposed to value individual freedom and liberty.

And, before you go using the dreaded "liberal" word - I think the social programs, including Obamacare have been marching us toward a totalitarian society. An overpowerful and oppressive criminal justice system is helping to speed that march and is a valuable tool of those who want to take us there. I suspect that many of those prosecutors that advocate for that type of system would be perfectly fine with a completely totalitarain form of government - so long as it was they that had the power.

Anonymous said...

I'm going to say a big "hell no," Texas Republicans won't even look at prosecutoral misconduct/abuse of power etc. Prosecutors campain on the fictictional myths of "tough on crime" policies. Besides won't the furthurance of tough on crime help push up the value stocks of for-profit industries imbedded in prison and probation?

Anonymous said...

Prosecutor run with "tough on crime" campaigns because that's what the public wants. Imagine the outcry if a person ran for DA promising compassion, considered prosecution, and second chances!

Anonymous said...

Prosecutors run "tough on crime" campaigns because that's what works. THe public doesn't want to hear about compassion, second chances or - heaven forbid - that post 9/11 police may not always be right.

Anonymous said...

Over the years I have noticed something. When a person does whatever evil it takes to convict, slander, hurt, or destroy someone, sometimes it later surfaces that they had a strikingly similar dark secret they are trying to distance themselves from. It is like screaming don't look at me, look at the horrible person over there. They artificially raise themselves above suspicion to keep prying eyes away.

Case in point: Kelly Siegler
Case in point: Ken Anderson

I wonder at times if other overzealous people in power, politicians, prosecutors, judges, and juries do the same blame-deflection for some of their own dark secrets, especially in sex offense cases.

Case in point: Lt. Col. Jeff Krusinski’s crime of Sexual Battery. He was the he officer in charge of the U.S. Air Force’s response to sexual assault.
Case in point: New York tough-on-crime parole board commissioner Chris Ortloff sentenced to 150 months for child sex charges.

I could go on and on but you know them all. Rarely does any of this go anywhere due to corruption, cronyism, and the evilest thing in our judicial and legislative system, immunity.