Discovery reform is still reforming. One thing that makes the Legislature entertaining is its unpredictability. For instance, the latest version of SB 1611 by Ellis (D-Houston) and Duncan (R-Lubbock), now titled “The Michael Morton Act,” was passed out of committee and sent to the Senate floor with an understanding that language protecting victim/witness information still needed to be settled upon. The problem is, that has not happened, but the bill is scheduled to be debated on the Senate floor on Monday anyway. That could lead to some fireworks on the Senate floor between the bill’s authors and Senator Joan Huffman (R-Houston), a former prosecutor and judge who is seeking to add her own language protecting that information from distribution to third parties or the public. We’d be lying if we told you we knew how it was all going to shake out, but if you need more information before you make a recommendation to your own senator(s), contact Rob Kepple for additional background.So I looked and, sure enough, as it came out of committee SB 1611 by Ellis on the Senate side has been placed on the intent calendar and includes provisions for a gag order that wasn't in the bill as filed:
On a showing of good cause specific to the case, the court may enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred or that the attorney representing the defendant is prohibited from distributing to a third party offense reports or witness statements received from the state. For purposes of this subsection, "good cause" includes the probable loss, destruction, or fabrication of evidence, the probable compromise of an investigation by law enforcement, or evidence of intimidation, a threat of harm, or danger to the safety of the victim or witness. In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of the document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but, notwithstanding Subsection (a), is not required to allow electronic duplication of the document, item, or information.If Shannon's right, that language was a placeholder for language to be negotiated (that's how they roll in the Senate), but the parties never could come to an agreement.
The bill carries the name, the Michael Morton Act, but one wonders if Morton and other high-profile exonerees would ever have been cleared by the courts if, when exculpatory evidence was discovered, his attorneys and supporters had been required to stay publicly mum outside the confines of a Williamson County courtroom? How much sense does that make? The gag order provision seems a disservice to Morton and others sent to prison based on alleged prosecutorial misconduct. Why not just conduct criminal prosecutions in the open and let the chips fall where they may? Or, barring that, be sure to gag police and prosecutors from speaking publicly about evidence as well.
MORE: From the Texas Tribune (April 9), see "Fight over information security could jeopardize 'Michael Morton' Act."
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27 comments:
Because prosecutors already have restrictions on what they can disclose publically about a case. This protects not only the defendant's right to a fair trial but prevents a circumstance where venue might be compromised due to pretrial publicity. For example, prosecutors are prohibited from disclosing that a suspect has confessed.
This latest issue about third party disclosure of evidence has nothing to do with Michael Morton. Nothing in this legislation will prevent the disclosure of evidence post trial that has already been publically disclosed in court or in pleadings. Everything that was disclosed in Morton's post-conviction proceedings would still be disclosed. What this does protect is victims and witnesses--especially in gang and prison prosecutions. Think Aryan Brotherhood, Tango Blast, Mexican Mafia, among others here. The protection language being debated has no impact on what the defense will still be entitled to in discovery--essentially open file discovery. In fact, defendants are about to get discovery far beyond anything they've ever been entitled to under Texas law. And, there is no mutual discovery here so the defense doesn't have to disclose anything. This is simply about obtaining a reasonable degree of protection for victims and witnesses.
Incidentally, if you don't think retaliation and witness intimidation might be a real concern, then you haven't been watching the recent events out of Kaufman County (which you've been conspicuously silent on). If criminals are willing to retaliate against law enforcement officials, do you think they would be less inclined to retaliate against victims or witnesses?
8:45, first, law enforcement, especially police (who at larger agencies have full-time PR divisions), frequently discuss evidence with the media, sometimes after or during a perp walk, for maximum effect. Tell the defense they can't share or discuss evidence and IMO the same restrictions should apply to both sides.
If this language only allows non-disclosure requirements after a finding is made that somebody is in actual danger from gang retaliation, etc., that's one thing. If it becomes routine in every case, as it will be particularly for pro se defendants, that becomes a mere excuse for opacity as opposed to a reason.
As for the comment that Grits has been "conspicuously silent" on the Kaufman county killings, that's for the same reason I don't comment on most shootings by police when they happen - I have no substantive knowledge to add and see no benefit to anyone from substance-free opining when I've nothing to say that's not already been said. It's got to be one of the most talked about topics in the state. What should I say, or could I say, that would contribute anything meaningful to the discussion at this point? Further, do you fantasize that any secrecy provisions imaginable might have kept the DA and his wife from being shot? That's seems like quite a stretch but then I've already had trolls blame THIS BLOG for Mark Hasse's assassination so I'm getting used to this sort of disassociated non-reasoning from anonymous prosecutors.
So Grits is now advocating open season on victims of family violence! Isn't that just wonderful! Great! Can't wait to see how this plays out! What's the problem with a body count when it comes to transparency?
No, I didn't say that at all, 10:15. Please re-read.
I said that when a legitimate danger exists, a gag order is justified, but "If it becomes routine in every case, as it will be particularly for pro se defendants, that becomes a mere excuse for opacity as opposed to a reason." Try arguing against what's said and not whatever BS stereotype you carry around in your head about people who disagree with you.
Do you think it's unreasonable to wonder whether a lot of the anti-prosecutor hysteria in the media recently might have contributed to what's happened in Kaufman County? It's hard to deny that some segments of the media have used the Morton case--a case that was tried over 25 years ago under completely different Brady and discovery standards than are in practice today--to vilify contemporary Texas prosecutors. Just look at some of the vicious anti-prosecutor comments on your blog. I'm not suggesting you're intentionally encouraging those types of hateful comments, but you sure cant deny they've been made. What prosecutor in his right mind would post here using his or her real name? A prosecutor makes enough enemies through their daily job without publically encouraging other hate-filled animus. What's equally distasteful is how some segments of the defense bar, liberal media and legislators are exploiting Michael Morton to advance their own political agendas. I certainly don't blame Morton for speaking out on his own behalf, but you have decried this practice when others have used high profile crimes to promote new penal offenses or enhancements. You're doing the same thing here in connection with this disclosure issue as it relates to discovery. The factors that caused Morton's conviction had absolutely nothing to do with disclosure to the media or third parties outside of the defense. Yet here you are trying to make that connection. What's the difference? Under the flag of Michael Morton and "prosecutor accountability" some are promoting a climate of prosecutor hatred and, to a degree, anarchy. That's pretty dangerous if you ask me.
The answer is "Yes," 1:11, I think it's "unreasonable" bordering on paranoid to fantasize that "anti-prosecutor hysteria in the media recently might have contributed to what's happened in Kaufman County." That suggestion is so ridiculous it would be funny if the situation weren't so grave.
Nobody yet knows why the prosecutors in Kaufman County were killed. My bet is that, if the truth is ever discovered, it will be for very specific reasons that have nothing to do with anything the media, MSM, social, or otherwise, said or did.
It's funny how prosecutors attempt to label an honest and open discussion about the serious and pervasive problem of prosecutorial misconduct as "anti-prosecutor hysteria." These prosecutors would prefer to keep all this quiet so they can continuing withholding evidence, knowingly presenting false testimony, intimidating witnesses, etc. Those in power don't like it when their crimes are exposed. I think it is absurd to link the attention that the issue of prosecutorial misconduct has gotten to the murders of the prosecutors in Kaufman County. However, if there is a link, prosecutors only have themselves to blame. They created and allowed the problem of prosecutorial misconduct to flourish. Even the honest prosecutors have turned a blind eye to the transgressions of their brethern. So, if they want to blame the murders on this issue, the blame lies squarely with themselves. But, instead of manning up and taking responsibility, they choose to blame the media and those who had the courage to expose the misconduct.
Now, what I'm going to say next is said simply to make a point. It is not what I believe but I am saying this to illustrate the problem with the way some prosecutors think. I have no reason to believe the prosecutors in Kaufman County were anything but honest and faithful public servants and do not mean to denigrate them in any way. That being said, what if we apply the logic that prosecutors have applied to the issue of wrongful convictions and prosecutorial misconduct to these events. I only recall hearing of one other incident where a Texas prosecutor was attacked. So, in, I don't know, probably decades, we have three attacks on prosecutors. This makes this an extremely rare occurrence; much rarer than wrongful convictions or prosecutorial misconduct. Many prosecutors advocate that the system works fine and nothing needs to be done about the problems of wrongful convictions and misconduct because it occurs so rarely. Applying the same logic to the murders in Kaufman County, this type of thing is so rare we need to be too concerned about it. We certainly shouldn't spend a lot of taxpayer money or put a lot of effort into fixing such a miniscule problem, should we?
But wait, the lives of these two men matter you say? Hmmmm, what about the lives of those who have spent decades in prison due to prosecutorial misconduct. Don't their lives matter? Yet, we will still have many, many prosecutors continue to deny the problem. The word Hypocrites comes to mind.
If you are a prosecutor and you think the discussions taking place about the issue of prosecutorial misconduct is simply "anti-prosecutory hysteria," you are truly warped. That's just like saying all the attention given to these murders is simply anti-something(pick a label) hysteria. I swear, the willful blindness, the inablity to see things objectively, just amazes me sometimes.
Don't think your blog contributes to the incendiary anti-prosecutor rhetoric out there, Grits? See comments of 3:26 above as Exhibit A.
Like I said, 3:50, none of us knows the precise motive of the people who shot the prosecutors and the DA's wife in Kaufman County. But I'm pretty sure we'll eventually discover they had a specific motive. Despite your earnest contentions, I don't think it likely they read a rude or incendiary blog comment and snapped.
I'm not suggesting that what happened in Kaufman County is the result of anything anyone read from any one source. And you may well be right that the killer(s) likely had a very specific motive. My point is simply that the media, including your blog, has recently and enthusiastically perpetuated a myth that prosecutors are generally bad and that prosecutor misconduct is rampant. This is based upon a very small number of well publicized exonerations--most of which did not even involve prosecutor misconduct. But people like 3:56 are sucked right into this myth and spread it. Granted, prosecutor misconduct happens and when it does, it can lead to devastating results. And it makes big headlines. But the numbers simply do not bear out that there is a pervasive problem warranting the degree of media and political hype devoted to the issue. One has a better chance of winning the lottery than being harmed by an unethical prosecutor. My point is simply that this myth creates a very unhealthy distrust of our system of justice in general and prosecutors in particular. Unless you're ready to return to vigilantism, prosecutors will remain an indispensable part of our justice system. Even Barry Scheck has publically stated several times that he doesn't believe there's any epidemic of prosecutor misconduct. So why all the hysteria? My point is simply that prosecutors make enough enemies through the normal course of there jobs. Stop painting them all with that Michael Morton brush. In light of what happened in Kaufman County, the unhinged element in our society really doesn't need any more inspiration.
What's the point of adding the gag order provision? It's already allowed by law and has been used in cases, including the Norwood case. Judges can also narrow an order to just certain documents, too. Defense attorney's also have to follow rules of professional behavior. (No need to post snarky responses on that.) Strip it out and pass the dang bill!
"But the numbers simply do not bear out that there is a pervasive problem warranting the degree of media and political hype devoted to the issue. One has a better chance of winning the lottery than being harmed by an unethical prosecutor."
Murders of prosecutors are very rarer than prosecutorial misconduct. So, why all the media hype devoted to the issue right now? See how insane your arguments are? No, I'm sure you don't. Prosecutorial misconduct is common. Anyone who doesn't recognize that either has their head in the sand or is one of the bad ones that rationalizes his behavior. Which are you? Or maybe you are just a psychopath with no conscience.
To downplay the magnitude of the problem is either complete ignorance or willful blindness. Which is it? There are many, many, many, many, many examples. This is something that occurs every day.. You try to make it sound like the problem has been solved in the 25 years since the Morton case. Nothing, I mean nothing, could be further from the truth. Its just as bad, maybe even worse. But, justkeep your head buried in the sand. Keep protecting your unethical colleagues. There behavior is criminal and when you turn a blind eye, you are just as bad.
I put you and those who support and encourage misconduct (yes, that is what you are doing ) only slightly, very slightly, above the people who shot those prosecutors. You and your kind are destroying lives on a daily basis and you show no remorse and accept no responsibility. Man up and face the reality of the problem. Stop being a sniveling defender of slime. Until those honest prosecutors get the stones to do the right thing and demand their colleagues do things right, the entire profession is smeared.
If you think this problem has been solved in the last 25 years, spend a little time in Smith County. There is ongoing and frequent misconduct occuring there - the Mineola Swingers case - the ongoing Kerry Cook saga - Matt Bingham, whom I'm sure is your buddy, has lied to the Court, withheld evidence and done all sorts of sleazy things in the last couple of years. I'm sure SmithCounty is not the only place where this stuff is still going on. Until there are consequences, this will be a problem. You accuse grits of advocating anarchy. Yet, it is you who want people to be unaccountable and be able to break the law with no consequences. You are the ultimate hypocrite. You put some criminals in jail while others criminals are you pals. You turn a blind eye to those criminals. Don't you. Or, perhaps you are one yourself, I don't know.
It simply amazes me how prosecutors are always using "victims" for their own political purposes and are always shouting about "accountability" and protecting society. Yet, they won't talk about victims of prosecutorial misconduct. In fact, some of them say these people probably deserved what they got. And, as far as accountablity, well, that is something that applies to everyone but them. I mean, seriously, how much of a hypocrite can you be. Come on.
"What's equally distasteful is how some segments of the defense bar, liberal media and legislators are exploiting Michael Morton to advance their own political agendas."
Do you find it equally as distasteful when prosecutor exploit "victims" to advance their own political agenda. Or how about when prosecutors refuse to admit they went after the wrong guy because it may hurt their political career?
H Y P O C R I T E !!!
"This is based upon a very small number of well publicized exonerations--most of which did not even involve prosecutor misconduct. But people like 3:56 are sucked right into this myth and spread it."
First, spend a little time and do some research. You will find that number is not as small as you think. Second, yes, many, many, many of them involve misconduct. Again, do some research. I've done that research. It is you and your colleagues that are perpetuating myths on this subject. Again, do some research. But, I know you won't because you don't want to shatter the illusion you live by. Come on, I dare you, do the research. Anyone can come on here and spout off but lets see you back it up. Spend some time, research those cases, look at how many they are. Then think about what 2 or 3 decades of your life is worth. Since you think its not a big deal, will you volunteer to spend 25 years of your life in a Texas prison. Come on, so what if you haven't done anything wrong, its really no big deal, just one person...so rare we don't need to be concerned, do we. Educate yourself about the subject instead of spouting off the myths and lies being spread by you and your colleagues. You wonder why some people don't trust prosecutors. Take a look at yourself. You come on here spouting crap that anyone who has researched and paid attention to this issue knows to be total crap. And, what is really scary, is that we trust people like you with the justice system. I bet you don't even bother to research your cases. You just know they're all guilty, right?
I'm sorry for ranting so much but I'm just sick and tired of these sleazeballs trying to come on here and deny reality. They try to label the truth as myth and spread lies as the truth. Its just freaking ridiculous.
"One has a better chance of winning the lottery than being harmed by an unethical prosecutor."
That argument is so asinine. Did you really even think before you said that? First, I actually doubt that's true. I know people who have been victims of prosecutorial miscnoduct. I dont' know anyone who has won the lottery. Second, its just a stupid argument. One thing has nothing to do with the other. It's just an asinine use of hyperbole to attempt to support a bad argument. But, these are the genuises in charge of the system....no wonder its such a freaking mess!
"Stop painting them all with that Michael Morton brush. In light of what happened in Kaufman County, the unhinged element in our society really doesn't need any more inspiration."
If you don't want to be painted with this brush, stop denying and covering up the problem. Someone who lives under such delusions as you do is likely "unhinged." Are you one of those prosecutors who gets your jollies off the power you have to inflict punishment? What would you be doing if you wern't a government bureaucrat - probalby selling used cars (no offense to used car salesman ou there).
Okay Mr. Prosecutor - I say lets give you and your colleagues a chance to demonstrate some integrity. I propose that people post all the incidents of prosecutorial misconduct that they are aware of that occurred within the last 5 years. If you and your colleagues really care about justice, you will call for an investigation of these incidents. I'll start:
The Mineola Swingers Club Case - Smith County - allegations of withholding evidence, coercing witnesses, and hiding a witness. Also, the former prosecutor of the year and now judge in this case made up ad hoc rules of evidence to help the prosecution. He shoudl be disciplined also.
The ongoing battle by Kerry Cook to clear his name - lying to the Court.
Let's start with these two. These are not just my opinions. These acts are well documented. Mr. Prosecutor, will you publicly call for an investigation into these matters? Or, will you continue to cover for your unethical colleagues? I encourage others to post more incidents. You see, this is an ongoing, serious, and pervasisve problem, Mr. Prosecutor. Now, will you have the integrity to do anything about it? Or will you continue to be a hypocrite?
In a study of the first 74 DNA exonerations, prosecutorial misconduct was identified as a significant factor in 33 of those cases. In those 33 cases the following categories of misconduct were identified as factors: Suppression of Exculpatory Evidence-37%, Knowing Use of False In a study of the first 74 DNA exonerations, prosecutorial misconduct was identified as a significant factor in 33 of those cases. In those 33 cases the following categories of misconduct were identified as factors: Suppression of Exculpatory Evidence-37%, Knowing Use of False Testimony-25%, Coerced Witness-11%, Improper Closing Arguments-9%, False Statement to Jury-9%, Evidence Fabrication-5%, Other Misconduct-4%.
The frequency with which prosecutorial misconduct occurs is difficult to measure. Many cases of misconduct are never discovered. “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. Ninety-five percent of criminal cases never 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.” Additionally, some appellate rulings are unpublished and those that are published rarely identify the trial prosecutor.
Researchers and authors have been studying and writing about the problem since 1932. A recent USA Today article looked at the problem at the federal level. The authors documented 201 criminal cases that have occurred since the enactment of a 1997 federal law aimed at ending prosecutorial misconduct, in which judges determined that Justice Department prosecutors had violated laws or ethics rules. This conduct was often described by judges as “flagrant” or “outrageous” and included such behavior as hiding evidence, lying to judges and juries and breaking plea bargains. 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 a doctrine called ‘harmless error.’”
Even when misconduct is revealed, convictions are rarely reversed. In an analysis of 11,452 cases in which charges of prosecutorial misconduct were reviewed by appellate court judges, the Center for Public Integrity found that misconduct was typically ruled to be harmless error or was not addressed by the appellate judges. “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.”
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 which were attributed in whole or part to prosecutorial misconduct.
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.”
At the federal level,“[t]he justice department has paid nearly $5.3 million to reimburse the legal bills of defendants who were wrongly accused. It has spent far more to repeat trials for people whose convictions were thrown out because of misconduct.” Heath & McCoy, supra note 10. The cost to state taxpayers has not been calculated but is likely to be in the billions.
Trial judges rarely take any action to prevent or punish misconduct. Moreover, they often fail to act to protect the defendant from the consequences of such misconduct. Even at the appellate level, judges fail to act to ameliorate the problems created by prosecutorial misconduct. Appellate courts often label prosecutorial misconduct as “harmless error” and affirm convictions. In the Center for Public Integrity study, of the 11,452 cases in which prosecutorial misconduct was identified, appellate courts labeled the misconduct as “harmless error” in 8709 of the cases. . Between 1993 and 97, in Illinois cases, appellate courts affirmed convictions in 122 cases out of 167 where misconduct was identified.
Prosecutors almost never face disciplinary action from state bar organizations for misconduct.
Specifically, the report by the Center for Public Integrity found that since 1970 there were more than 2000 cases of prosecutorial misconduct requiring appellate correction for harmful error but there were only forty-four instances in which disciplinary action was take and only two disbarments. Another study apparently found that from 1886 to 2000 there were only 100 cases of disciplinary proceeding against prosecutors, less than one per year across the entire country. And although the Chicago Tribune study found 381 reversed convictions resulting from prosecutorial misconduct in suppressing exculpatory evidence and introducing false evidence, it found not a single instance in which the prosecutor receive a public sanction.
While federal law does provide criminal liability for government officials who violate the constitutional rights of citizens, since 1886 there has only been one conviction of a prosecutor under this statute.
In more than 15% of cases of wrongful conviction overturned by DNA testing an informant or jailhouse snitch testified against the defendant. Often, statements from people with incentives to testify-particularly incentives that are not disclosed to the jury-are the central evidence in convicting an innocent person.” Understand the Causes: The Causes of Wrongful Convictions, The Innocence Project, http://www.innocenceproject.org/understand/# (click on the link for an examination of cases based on other criteria).
I bet the prosecutor commenting here is the same one who, on another thread, admitted to knowingly allowing police officers to commit perjury. Hearing a prosecutor say misconduct is not a significant problem is like hearing a criminal saycrime is not a problem.
A persons odds of being murdered are probably similar to their odds of winning the lottery. A persons odds of being a victim of prosecuttrial misconduct are much higher than their of being murdered. so applying the prosecutor's logic, we don't really need laws against murder and we need to stop wasting resources investigating and prosecuting it
Prosecutors intimidate more witnesses and hide more evidence than any defense lawyer ever would. I bet they rival gangs in that regard.
Why is it that prosecutors accuse those who are working to free people who have been wrongly convicted and working to improve the system to make it less likely that the wrong persons are convicted of having a "political agenda." Maybe its just semantics, but, instead of a political agenda, I'd call that a righteous and worthy cause. On the other hand, DA's are elected officials and are always concerned with political implications. It seems to me that it is the prosecutors who have the "political agenda," which seems to be protectin their power at all costs. Far too many prosecutors seek only wins instead of justice. If the prosecutor commenting here is worried about any public perception being shaped, he needs to worry about the effect of this "win at all costs" attitude that leads to wrongful convictions. It is the prosecutors' own behavior and attitudes that is turning public sentiment against them. It's not the media or the innocence project. Its time for prosecutors to take a good hard look at themselves and to put the blame where it belongs. Its time to put the focus on justice, not politics.
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