SCOTX issues new rules on prosecutor misconduct

The Texas Supreme Court has upgraded its rules regarding prosecutorial misconduct in response to state Sen. John Whitmire's legislation this spring, clarifying that prosecutors may be punished in older cases (like Judge Ken Anderson in the Michael Morton case) where "fraudulent concealment" of probative evidence resulted in a wrongful conviction. See the new rules here.

MORE (Oct. 18): Rep. Ruth-Jones McLendon issued a press release about the new rules which I've appended in full below the jump.

Sometimes, the wheels of justice turn slowly.  Such is the case with Texas criminal justice system reforms regarding wrongful convictions. Texas leads the nation in the number of wrongful convictions, and here I mean a conviction of a crime that the person did not commit. This week, a major milestone was passed:  the Texas Supreme Court changed the procedural rules for grievance complaints when the Commission for Lawyer Discipline receives a complaint of prosecutorial misconduct.  The Court's order puts into motion the requirements of Senate Bill 825, which took effect September 1^st.  The District Attorneys of Bexar County and Harris County were among many supporting the legislation. 

This does not mean it is now open season to file disciplinary proceedings against state prosecutors.  Many factors can cause a wrongful conviction other than prosecutorial misconduct.  For example, Timothy Cole was convicted based on false testimony.  He served thirteen years of a twenty-five year sentence for a 1985 rape he did not commit; in 1995, the guilty rapist confessed.  In 1999, Cole died in prison from an asthma attack.  His mother, Ruby Session, waged a long and relentless campaign to exonerate him.  His case helped bring about a series of reforms recommended in 2009 by the Timothy Cole Advisory Panel, to change state laws and provide greater assurance of due process and a fair trial for all persons charged with a crime.  Yet, Ruby Session would not rest until she obtained a posthumous pardon to clear his name.  Governor Rick Perry granted the pardon in 2010.  Ruby Session passed from this earthly life on October 10th, devoting nearly 30 years of her life making the wheels of justice turn.  Thank God for her courage and determination!

In 1987, Michael Morton was wrongfully convicted of murder based on evidence later reported to have been withheld by the prosecution.  His 2011 exoneration was a driving force in a 2013 law changing evidence disclosure requirements, and the related changes required in S.B. 825 for disciplinary procedures applied to complaints of prosecutorial misconduct.

   

So, this change does affect the disciplinary procedures for a grievance brought against a prosecutor for violating the rules that require evidence disclosure, if it could clear a defendant of the charges.  And, if the Commission finds that a lower-level penalty, a reprimand, is appropriate, the reprimand must be disclosed to the public, rather than remaining private.

As I said before, the wheels of justice move slowly.  The action by the Supreme Court based on Senate Bill 825 does not guarantee the end of all wrongful convictions in Texas.  It does represent a milestone in addressing the barriers that have existed in seeking and pursuing accountability and true justice for wrongfully convicted individuals.  May we all live to see the day when innocent persons are not sent to prison for crimes they did not commit.  It's about time.

Representative McClendon currently serves on the House Committee on Appropriations and the  House Committee on Transportation.  She also serves as Chair of the House Committee on  Rules & Resolutions.  The 83rd Legislative Session is her ninth term serving Texas House District 120.