Friday, April 26, 2013

Ross Ramsey on waning prosecutorial power

A lot of folks have asked me why (most) prosecutors have acquiesced to a one-sided, open-file discovery bill after insisting for most of the last decade that they would only do so if the defense bar agreed to "reciprocal discovery" like they have in federal court and most other states. Grits believes the answer may fundamentally be found in an item at the Texas Tribune by Ross Ramsey titled, "Texas prosecutors no longer unassailable." His colunn opens:
Image via the Texas Tribune
An elected prosecutor used to have one of the most respected jobs at any level of Texas government.
District attorneys were often big personalities — the courtroom muscle of the criminal justice system, the people showing up on TV to play out the real-life version of “truth, justice and the American way.”

Candidates for Texas attorney general — an office with almost no duties in criminal law — have tried to capture the crime-busting aura of prosecutors for years. It was strong stuff in a political arena.
Running a political campaign against a sitting prosecutor in Texas was a job for egotistic dunces and legal-minded Quixotes. Even weak DA’s were invincible.

But a strange thing is happening in the impervious ranks of high-profile Texas prosecutors. That cachet is taking a beating.

One prosecutor is in jail. A former district attorney is facing charges related to sending an innocent man to jail. One county spent nearly $400,000 settling a sexual harassment charge against its DA. Another prosecutor is fighting contempt of court charges after refusing to testify in a prosecutorial misconduct inquiry.
He mentioned only in passing Dallas DA Craig Watkins' bizarre decision making this year that led a Democratic judge to declare him in contempt of court. And he could have added the strange episode where DA Association executive director Rob Kepple and newly elected Harris County DA Mike Anderson, who was elected on a revanchist platform, made bizarre Us. vs. Them comments at a prosecutor training that drew fire from the conservative blogosphere and various MSM outlets. It's been quite remarkable to watch the terms of debate shift among capitol opinion leaders. It'd be interesting to see some fresh, state-level polling on public attitudes on the topic.

Grits dates the beginning of Texas DAs' recent slump to Harris County DA Chuck Rosenthal's ignominious, public meltdown. When Rosenthal imploded, his heir apparent lost a primary runoff and much of the old-guard staff left the agency. Meanwhile, Craig Watkins took out Dallas DA Bill Hill's own heir apparent, then launched his DNA/innocence review, similarly dissipating the old guard among senior prosecutors. From that time, prosecutors' relative political clout changed. All of a sudden, they no longer spoke with one voice. Not only were two hard-line prosecutorial political bases (Dallas and Houston) replaced with ostensible reformers, but those rookie reformers were focused on their own jurisdictions, not projecting political power at the capitol the way their predecessors had done.

That left John Bradley in Williamson County as the tuff-on-crime standard bearer for Texas DAs. He was based close to Austin, had legislative experience (including at one point two decades ago as a staffer to Senate Criminal Justice Chairman John Whtimire) and for several sessions he had the Governor's ear, getting Perry to veto Jerry Madden and Whitmire's probation reforms in 2005 and throwing his weight around on the Texas Forensic Science Commission. But history, the Texas Senate and ultimately his own local Republican primary voters did not deal kindly with JB.

Today, who is there to replace him among elected DAs in that tuffer-than-thou vein? Susan Reed in Bexar County, to some extent, though perhaps for partisan reasons her delegation doesn't reliably carry her water. Abel Reyna  from Waco is outspoken and based just 90 miles away but his office is not engaged at the capitol. Neither is the Smith County DA - they have a hard-line reputation but they're not represented at the capitol day-to-day the way the larger counties often assign a full-time prosecutor to monitor legislation in Austin. El Paso's DA qualifies as a modest reformer. Prosecutors from the Valley occasionally show up, though mostly for local issues. And as for Harris County, my own dealings with new DA Mike Anderson's statehouse lobby team have been civil and productive - a much more pleasant and reasonable experience than either under Lykos or Rosenthal.

The result has been a remarkable change in tone from prosecutors' own representatives, exemplified by their new stance on discovery. There are still some outliers who'd like to kill discovery reform, I'm reliably told, but the prosecutors' association is doing its best job at cat herding to try to keep them in line. Enjoy it now, there's no telling how long this kinder, gentler face will predominate.

Either way, Ramsey is right that that Texas prosecutors recently faced remarkable political and legal setbacks and no longer enjoy an air of invincibility. However, I don't think they've agreed to a one-sided discovery bill just because they're weak. Many of them already have open file policies and so don't see the harm. I think it's also because they want to position themselves again as the guys in the white hats, a perception that just a few years ago at the capitol all of them took for granted. Folks like Lehmberg, Anderson, and Bradley aren't used to being the bad guys and their peers don't like being tarnished by their actions. They're still a powerful force at the capitol, though, and it'd be a mistake to suppose these temporary setbacks will diminish Texas prosecutors' clout any time soon, even if they need to find new messengers.

RELATED: Rough day for Central Texas prosecutors: Lehmberg, Anderson headed to jail


John C. Key MD said...

This is a welcome change and I hope it continues. Raised in a conservative Texas law-and-order family I grew up hearing my parents evaluate the efficacy of prosecutors by how many defendents were sent "to the chair". In that same vein I was taught that the prosecutors were on a single minded-quest for justice and truth.

Only as an adult working in the criminal justice system did I learn that my earlier impressions weren't necessarily so. "Grits" blog and IPOT work had a lot to do with that, as did my observing of some [very]minor drug cases where overzealous prosecutors went for the throat and maximum sentences as if the miscreants were serial axe murderers.

I hope this apparent swing away from the old norm will continue.

Anonymous said...

Not to mention the DA in Austin who is also in jail after her arrest on DWI charges and subsequent guilty plea. She threw a tirade telling arresting officers she was "The Law" and that there would be Hell to pay if they followed through with the arrest. Officers finally had to place her in the Emergency Restraint Chair. Useless people like her would be well-served to go home, down a fifth of their favorite, then take a pistol to family members before taking themselves out.

A special thanks to Eric Williams who redeemed himself after spending 22-years as a cop. You're a good cop now...

Anonymous said...

I doubt this is the proper venue to express this sentiment, but I wonder if we really want prosecutorial power to wane that much in Texas. At the end of the day, somebody is still going to have to represent the state, and crime victims, in the prosecution of criminal offenses--some of which are very heinous and violent. Society in this state will always have an interest in making sure that violent criminals are removed from our midst and the rest of us protected. The miscues and "bad apples" identified in Mr. Ramsey's editorial still represent an infinitesimally small percentage of the prosecutors in Texas as well as the number of cases prosecuted. Nonetheless, if these miscues foster a level of systemic distrust on the part of the public to the point that it diminishes our criminal justice system's ability to protect society and bring the guilty to justice, I don't think that's necessarily a good result. Moreover, if you began to see well publicized instances of the guilty being let off (see, O.J. Simpson), I would expect the pendelum to begin to quickly swing back in the other direction--especially in this state.

Gritsforbreakfast said...

11:41, IMO it'd be a mistake to think it's waned too much. On the ground, hearing to hearing, bill to bill, they've still got more input into the legislative process than any other interest group. I would worry too much yet about poor, disempowered prosecutors.

Ryan P said...

I think there's a big difference between waning power of prosecutors in the Legislature and an ability to effectively try and convict criminals in their home counties.

If anything, an open discovery law coupled with actual punishment for bad apple prosecutors (Anonymous talks about guilty people being let off. The highest profile instances of people committing crimes and not being arrested and pursued for that is prosecutors. Even Ken Anderson is unlikely to see punishment for his actions despite the findings of the Court of Inquiry) can help restore confidence in the system.

Personally, I doubt that open discovery will make any difference in the results of 99.9% of cases. Most will still end in a plea bargain, and the vast majority of the rest will still end in guilty verdicts just like they do now.

This law is more important as a symbolic measure (a prosecutor who was willing to violate the law and his professional ethics by withholding actually exculpatory evidence isn't going to be swayed by another law that requires him to do the same thing) and maybe helping defense attorneys prevent tunnel vision in those very rare cases where such a thing is a problem.

Brad Walters said...

It is a mistake to believe that it is "...very rare cases where such a thing is a problem." Exculpatory video is frequently withheld or edited in the most frequently tried type of cases (DWI). ADA's are loath to inquire where the dash cam video is or if it even exists. Many times it is destroyed before a defense attorney is even hired on the case. There is absolutely a wink and nod don't ask don't tell agreement between LEO's and ADA's regarding exculpatory video and purging (according to LEO policy) if within 30 days it is not requested. I have three cases right now where video has been withheld, edited or destroyed and the ADA's see no problem with the integrity of the LEO agencies involved in spite of their history of not turning in material evidence in these cases. In one case an ADA checked out of evidence a tampered video (by agency who sent it)and replaced it with a better, but still tampered video (by I don't know who). I have a copy of the first video and the video now in the evidence room is different. These people are unbelievably blatant in their efforts to prevent the exclusionary rule from working properly when they believe they have a guilty defendant. That belief does not justify withholding, losing, tampering, or destroying evidence that will defeat their case. The only thing rare about the Michael Morton situation where ADA's violate their Brady obligation is the situation where you can prove eventually what they did. It is very hard to prove that destroyed evidence would have been exculpatory without that evidence. These lowlifes that are complicit in this common place activity need to face harsh penalties...which the new discovery bill does not provide. If caught they typically just have to try the case again over dismiss it and continue on with the misconduct. The ill needs to include an amendment to the penal code providing for criminal charges and penalties for LEO's and ADA's who fail to turn over Brady material before a plea as opposed to the eve of trial. Maybe the charges,information or indictment should not be should not be formally filed until all evidence and in the possession of LEOs and crime labs has been turned over. Imagine how often the decision to file may be averted when a blood test proves the defendant is not guilty and or the wrong person.

Anonymous said...

11:41 said: "Nonetheless, if these miscues foster a level of systemic distrust on the part of the public to the point that it diminishes our criminal justice system's ability to protect society and bring the guilty to justice, I don't think that's necessarily a good result."

I suspect 11:41 isn't, as he tries to make it appear, motivated by concern about the system. If he really believed the above quoted statement, he would have been fighting all along to see that those bad apples were held accountable. That is what will protect the public's trust in the system. Prosecutors have only themselves to blame for any level of mistrust in the system. Even the good ones turned a blind eye and attempted to protect their less ethical colleagues. That is the real source of the mistrust of the system. If prosecutors had stepped up years ago and demanded that their colleagues who broke the rules face consequences for their actions, there would be no need to have this discussion. Prosecutors like 11:41 will attempt to blame liberals, a few bad apples, etc. But, the biggest part of the blame lies with themselves. All who sat silently by and watched their colleagues cheat are just as guilty. They have brought this on themselves but refuse to accept responsibility for it. 11:41 is obviously still in denial as evidenced by his attempts to minimize the scope of this pervasive problem. It is nice to see that some prosecutors are beginning to step up and, although they had to be drug to it, are now embracing reforms. Of course, there will always be those like 11:41 who don't want their power or their ability to manipulate the system lessened in any way. They will continue to attempt to use fearmongering to stall, delay, or lessen the effectiveness of any reforms. Let's just hope 11:41 is in the minority.

On another note, I'd like to give credit to Wood County District Attorney Jim Wheeler. From what I understand he submitted a 70+ page brief to the appeals court in the Mineola Swingers case. The brief exposed misconduct on the part of the Smith County DA's office and Judge Skeen. That took a lot of courage and it is so rare to see a DA with the courage to expose another DA. The Smith County DA did try to use the media, which is located in Smith COunty and closely aligned with the DA's office and Skeen, to go after Wheeler but I don't think it was too successful. When one does display this type of courage and integrity, we need to be sure to give them credit.

Anonymous said...

YES Really!

Anonymous said...

Did you read the post? He does mention Rosemary. And I hope to God you are talking about a different Eric Williams than the one that murdered three people. Because if you are taking about him, you are a special kind of sick.

Anonymous said...

Looks like Mr. Ramsey left out one tiny factoid. The folks that 'used' to vote just-to-be-voting are slowly fading away and being replaced with voters that aren't as easily tricked. (Btw, *voter is just another word for juror).

And, the new blood line isn't going to be voting the same party as their parent's. They have access to verifiable news regarding politicians and don't rely on slick flyers or soundbits from commercials. The very moment a church sermon or conversation turns to politics they either close down or reflect on incidents of corruption.

Top it off with the fact that everyone knows someone that's been wronged by the very same system that they themselves entrusted to have a checks & balances (judge, jury, evidence & investigations) installed to prevent the rogue element(s) from conspiring and you get - waning. This a nationwide trend, because corruption isn't an isolated incident.

Anonymous said...

2:48 hell no he didn't and never does read the post. The titles' of the posts' is his crack pipe. The first paragraph is the crack. His comments are the smoke and the replies are what makes him tick.

Ignore, Ignore, Ignore, or you could engage, correct and assist those you'd normally walk right past if on the streets. (pssst, we all feel the same as you and it's disgusting) Despite this, a constant theme (worthy of ignoring)will show it's head in the form of calling everyone pro-criminals and something about liberals & grit's faithful will be inserted for good measure.