MSM coverage was relatively light of last Monday's senate hearing on budgets for the judiciary and related agencies (this was the hearing where I submitted written testimony on behalf of the Innocence Project of Texas to boost funding for law-school based innocence clinics), but the Tex Parte Blog reported that "The Senate Finance Committee wants to see proposals about what the Texas
Court of Criminal Appeals would do with an extra $1 million to train
lawyers and judges about dealing with mentally ill criminal defendants."
Sen. John Whitmire, D-Houston, said [Chairman Tommy] Williams had presented an opportunity for the court to propose “proactive programs” on mental health. He also asked how the court’s current mental-health training keeps people with mental illnesses out of jail.Shannon Edmonds at the Texas District and County Attorneys Association provided this rueful addendum about legislators questioning of Court of Criminal Appeals Judge Barbara Hervey over training for prosecutors on handing over exculpatory evidence, which the US Supreme Court deemed a constitutional obligation under Brady v. Maryland:
Hervey said she’d like to study available mental-health resources and educate lawyers about the resources so they could propose placing a criminal defendant in a mental-health facility instead of the criminal-justice system.
The Legislative Budget Board has recommended the CCA receive funding of $27.07 million for the 2014-15 biennium for court operations and judicial training. The court has requested an additional $5.39 million for multiple training programs and also wants another $1.29 million for a new staff attorney, pay raises for current lawyers, and more.
“We rely on them totally,” Presiding Judge Sharon Keller said about the CCA’s staff attorneys.
Committee members discussed prosecutors’ training with Judge Barbara Hervey, who manages the state’s grant program for the Court of Criminal Appeals that provides prosecutors with the bulk of their training. The committee members were most interested in additional training for prosecutors in two areas—mental health and Brady compliance. It was clear from the tenor of the questions that some legislators want to see increased training for prosecutors in both of these areas. As an aside, you should know that Judge Hervey fielded some very pointed questions about prosecutor conduct. Judge Hervey declined the invitation to drop prosecutors in the grease and opined that notwithstanding the occasional “bad apple,” prosecutor misconduct is not a problem in Texas. However, the tenor of the questioning certainly foreshadows what may be in store for prosecutors later this session.Another Tex Parte entry helpfully reported on requests at the same hearing to improve court technology, and here's one on Chief Justice Wallace Jefferson's budget presentation on the Supreme Court side.
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11 comments:
Just require an open file policy and you don't have to worry about whether the D.As are trained to follow the law (also, how come the state rarely spends money to train the rest of us to follow all the laws they come up with each legislative session? Ignorance of the law is no excuse when it comes to the general public, but District Attorneys are excused for not knowing about a really, really important Supreme Court case from half a century ago?).
Training, really, how many actually actively participate in the training they are required to attend. Hopefully this is a roll out training with specific results to follow.
It's disturbing that Judge Hervey fails to recognize the seriousness and scope of the problem. Training is not the answer. Prosecutorial misconduct is not, as some would like us to believe, simple error. We are talking about deliberate and intentional violations of the law and rules. Calling it "error" is like saying a burglar just broke into a house by mistake, or a rapist just had sex with a person by mistake. Training isn't going to stop a burglar or a rapist and it isn't going to prevent prosecutorial misconduct. Prosecutors who deliberately and intentionally violate the law and rules must be held accountable. The best solution is to remove absolute immunity.
I suspect one reason the Judge denies the seriousness of the problem is that she has to get reelected and doesn't want to turn prosecutors against her. That's a problem with elected judges. Its too bad those in political office often lack the courage to do the right for fear of political consequences. Imagine if murderers had a powerful political lobbying influence. I suppose they could argue that, since murder is relatively rare, there is really no need for any consequences. And, furthermore, victims deserve some of the blame because I'm sure they did something to deserve what they got and/or they shouldn't have put themselves in the position that led to their murder.
How about a training program, online for everyone and free, so that everyone can know every law? Don't the citizens who are commonly slapped in the face, jail and pocketbook, with that as the justification, can actually LEARN every little law that applies to them? Crazy? Impossible?
Yes.
So how about instructing JURIES that thay can nullify and vote not guilty if a defendant is accused of violating a law he didn't know about, didn't intend to violate or one so onerous that it SHOULD be ignored.
You can't require everyone to know every law and it's ridiculous to pretend so. The only remedy is to inform juries that they may ignore and nullify in such situations.
This house of cards can be tinkered with ad infinitum, with all manner of geegaws, bandaids, add-ons, training requirements, judicial and legislative findings.
It's still going to be a house of cards that delivers neither justice nor social good and is always going to be about to come down, getting worse and worse.....until it actually comes down.
I have seen so many examples where law enforcement withholds evidence. ADAs don't request videos and other evidence that any person of average intelligence would expect existed. The ADAs just make comments like "the offense report made no indication that a video existed in this case." Yet anyone who has been around long enough to prosecute felonies would know that most of the agencies other than really out of control HPD, have videos when a uniformed officer makes a stop with their squad car. This wink and nod don't ask (DAs) and don't turn in the evidence (LEOs) type of Brady misconduct is wide spread. They take advantage of policies alowing video, dispatch tapes and MDTs to be erased or over written if not requested within 30 days. If defense asks for them too late they are no longer available, but if the prosecutor can use them they seem to be able to get them much later. If these ministers of justice cannot be trusted to follow the law in misdemeanor DWIs and PCS cases is it any wonder we have so many like Mr. Morton losing decades of freedom over illegal hide the ball tactics? If a criminal prosecution cannot lead to conviction with the defense knowing everything the DA knows regarding evidence and leads (not true work product) then that conviction should probably not happen if we are serious about the prospect that it is better that guilty go free if it prevents the innocent from being wrongly convicted. The burden is "beyond a reasonable doubt"...not "were pretty darn sure this guy is guilty and someone has to pay". Prosecutors who fail to ask law enforcement for material evidence that they know is out there for fear it may invoke the exclusionary rule, hoping that it dissappears before the defense subpoenas it are corrupt. They cause wrongful convictions and give law enforcent carte blanch to violate not only criminals' rights, but also the innocent people that we don't hear from because the Fourth Amendment and due process violations did not result in an arrest or conviction. It IS out of hand and I will fight hard every time I see these abuses of the criminal justice system. I want these people like Bradley and Anderson all the way down to misdemeanor prosecutors, who let law enforcement withhold exculpatory and impeachment evidence, to clean it up or find another line of work where they can't do so much harm to the innocent in their efforts to make the guilty pay.
Open files don't help much when they don't put everything in them and they let (encourage) law enforcement to just hold on to the evidence that might destroy their case. Just ask Michael Morton. These cases of misconduct are hard to prove because you are dealing with smarter than average bad actors. That Bradley, Anderson, Nifong, a couple of Galveston prosecutors and a few others have been called on it is a miracle. The former prosecutor judges cover for most of them and when they don't cover for them and insist that Brady material be turned over then the matter is over once the defense gets their evidence...but nothing in the way of real sanctions occur in the vast majority of cases. Nifong was an fluke getting real punishment...watch Bradley and Anderson walk and then the abuse will really get bad when the win at all cost promotion seekers see that there is nothing to fear in cheating to win convictions.
I find it interesting that there is no discussion on the TDCAA's forum about the Anderson Court of Inquiry. Its interesting that they can't seem to discuss such a major issue. Its emblematic of their collective denial of the problem of prosecutorial misconduct. There's definitely some psychological dysfunction involved in that group. A while back a student who aspired to be a prosecutor scoffed at a question by a prosecutor regarding prosecution of someone for pasting a head on someone else's body on the internet. This student was skewered for daring to state how silly it was to prosecute something like that. This dysfunctional group will not tolerate any dissent in their midst. This dysfunctional group has named Ken Anderson, John Bradley, Jack Skeen, and others like them as Prosecutor of the Year. The problem here is definitely more than just an occasional bad apple. It is a collective embracing of bad behavior and a collective denial of the truth and a refusal to allow any discussion that might challenge the conventional wisdom of the group. This is going to take a lot more than a little training to fix.
Also, I'm afraid the type of training that would be done might make things worse. Prosecutors are not going to bring someone in to tell them they have to turn over more evidence. I'm sure the training would focus on how to avoid turning things over, more rationales and excuses for why something may not be Brady material. Nope, training isn't the answer.
Go to google scholar and pull up Masonheimer v State. The Taylor County DA didn't reveal Brady material, 2 mistrials were granted, the trial judge ruled a 3rd trial was jeopardy barred, the DA appealed, the Eastland Court of Appeals reversed and the CCA reversed Eastland and ruled that the State could not prosecute the Citizen further. The Taylor County DA didn't get it then and doesn't get it now. He still believes he got cheated.
A good sanction for withholding Brady material would be to have prosecutors and police officers write a check for $500 to the defense lawyers for every additional court appearance they have to make as a result of the withholding and reimburse the defendant for all legal fees if the withheld info results in a dismissal.
Another nice touch would be requiring them to handle the expungement petiton as well. Of course subjecting them to liability for civil suit would be a great incentive to cut out this game playing with the lives of real people. If a civil judge can impose sanctions for failure to turn over discovery, seems like a criminal court judges could do the same thing as a sanction for criminal contempt when Brady is intentionally withheld.
Sadly too many judges stop as soon as the material is turned over and call it harmless error. There is nothing harmless about dragging cases out months or better than a year longer than they should go, holding out for a plea when a dismissal is in order.
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