Wednesday, June 12, 2019

Covering prosecutors in the media: A primer

Your correspondent was asked to speak tomorrow at an Investigative Reporters and Editors conference in Houston on the topic of covering prosecutors. I told them I'd focus on three areas: Available data on prosecutors (focused on Texas), innocence issues, and context for covering so-called "progressive prosecutors." Since I had to prepare, anyway, here are a few highlights:

Texas prosecutor data

For the most part, data on prosecutors is scarce. In Texas, the first concerted effort to dig beyond the surface came from a reporter (now an attorney) named Cindy Culp, writing at the Waco Tribune Herald, 2009. (The stories are no longer available free online, but here are some excerpts, and Grits' contemporary coverage of her work.) The police union had accused the local DA of dismissing too many felony cases, so Culp examined case-dismissal rates in 3 counties - McLennan, Wichita, and Jefferson. She found:
Local prosecutors either refused or dismissed 50.3 percent of felony charges during 2006-08. For misdemeanor cases, there was a 39.7 dismissal/refusal rate, and for all cases combined, it was 43 percent. 
By comparison, during the same three years: 
* Prosecutors in Jefferson County, home to Beaumont and Port Arthur, refused or dismissed 45.7 percent of felonies, 40.4 percent of misdemeanors and 42.2 percent of all cases combined. 
* Prosecutors in Wichita County, where Wichita Falls is the county seat, refused or dismissed 46.3 percent of cases with felonies and misdemeanors combined. Data were not available broken down by felony versus misdemeanor.
The main thing Culp's work showed, however, was how hard it is to acquire meaningful prosecutor data and analyze it in a way that's useful and informative. She showed us more than we'd seen before, but also made more glaring the stark absence of data regarding prosecutorial decisions.

No one else attempted to track this data in Texas until the Texas Criminal Justice Coalition created its Harris and Dallas County Data Dashboards:

This resource lets case data be broken down by charge, by race, by census tract, and by arresting agency. Probably the two most interesting and/or newsworthy analyses will pertain to racial disparities, which can be broken down by type of crime and arresting agency, and dismissal rates. That takes these analyses several steps beyond the Culp's agency-wide analysis. But it's not available except for those two counties. And it's not clear it could be replicated everywhere through open records requests; both those counties have more robust data systems that could be scraped for these purposes.

Otherwise, in Texas what's readily available is Office of Court Administration Data:
The annual report gives statewide and county-level trends for new cases, overall caseloads, number of convictions/pleas/jury trials, and case clearance rates. The number of new cases and convictions both are often a useful datapoint to combine with other sources to make various calculations. Summary information at the front of the report may be useful, but more interesting are the data tables at the end.

Data queries allow MUCH more detailed breakdowns by county. In addition to county-level data on the datapoints from the Annual Statistical Report, you can get data on motions to revoke probation.

One of the best-kept secrets in the Texas judicial data can be found with a municipal and/or JP-court query. Select "Additional Activity" at the drop-down box under "Section." There you can find data on arrest and search warrants, Class C fines, how many fines are waived, how many were satisfied through community service, jail credit, etc. Prosecutors play a role in all of these decisions.

Another data-based story angle: just recently, Keri Blakinger of the Houston Chronicle published a landmark article on prosecutor caseloads at the Harris County DA, showing that District Attorney Kim Ogg had significantly overstated the prosecutor-to-cases ratio when pitching the commissioners court to let her hire 100 new prosecutors. Her open-records-based methodology would be interesting to replicate in large cities where caseloads may be an issue. For more background on the caseload issues, see this academic article, also focused on Harris County. To my knowledge, this caseload story has not been replicated elsewhere. If you're going to do this work in Texas, the Indigent Defense Commission keeps excellent, county-and-lawyer-level data on defense-attorney caseloads for comparison.

Data gaps: There are more parts of a prosecutors' job about which we don't have data than those we do. One of the most glaring data gaps regards plea bargaining and the "trial penalty" - i.e., how much more harshly defendants are penalized if they insist on the state proving their case at trial. Most datapoints that exist for prosecutors involve taking cases to trial, but overwhelmingly most cases (97+%) are resolved by plea bargaining. That process is a black hole with scarce little quantitative or qualitative information ever arising from it. But it's the most important (and common) thing prosecutors do.

Finally, Larry Krasner in Philadelphia and perhaps a few other new "progressive" DAs are beginning to generate more and different types of data. Although my presentation only discusses Texas datapoints, their example eventually may educate us about different analyses that DAs can do with their internal data that haven't typically been made public in the past. This is an aspect of the progressive DA movement that could have out-sized impact down the line, providing transparency to what has been an utterly opaque process.

Prosecutors and Innocence

My first bit of advice to this group when it comes to prosecutors and innocence:

Don't contribute to tunnel vision in high-profile cases: The cases that receive the most media attention paradoxically put the most pressure on prosecutors to cut corners to get convictions. In these instances, journalists play less a role of holding government accountable than government cheerleader, since the government (read: prosecutors) control all the evidence presented. That's both useful to understand after the fact when covering innocence cases, and a cautionary tale when covering cases on the front end. Sensationalized coverage of high-profile trials may not reach jurors, but it reaches voters and DAs react to it. (Watch Ava Duvernay's When They See Us on Netflix for an excellent example.) Given that we've seen so many such cases later overturned through DNA exonerations and other means,  the press has some soul searching to do when it comes to pandering to the public with salacious coverage and their role in generating false convictions.

Otherwise, when false convictions have already occurred, there are a handful of issues in innocence cases that fall directly on the shoulders of prosecutors. Here's what to look for:

Improper arguments: Prosecutors may say things at trial that can lead jurors to wrong conclusions: e.g., misstating the law, or relying on perjured testimony. These flaws likely will not be evident to reporters from the trial record (which is another reason to be cautious when covering trials up front), but typically will arise in appellate arguments down the line.

Failing to disclose exculpatory evidence: Brady v. Maryland is the federal case covering what prosecutors must disclose to the defense, but in Texas we passed the Michael Morton Act, which makes the requirements more stringent and requires disclosure earlier in the process. In Texas, prosecutors now must create a list of what was turned over and make it part of the record. This is an issue that will only come out in the appellate process; it's impossible to know at trial what evidence a prosecutor DIDN'T present. For an example of how to analyze appellate records to identify this type of prosecutor misconduct, see a study of California cases by the Veritas Institute.

Police records a gap in the system: Prosecutors cannot disclose records of police misconduct in Texas civil service cities governed by the state civil-service code: about 74 police departments out of nearly 2,000 statewide. That's because police-misconduct records in civil-service cities were made confidential by law in 1989, with departments forbidden even from sharing the information with other law enforcement agencies. (Of the large cities, only Dallas and El Paso aren't under the civil service system. Among sheriffs, only Harris County operates under this system.) In one case in San Antonio, a false conviction was overturned when police did not turn over video evidence of an officer assaulting a handcuffed defendant; instead, the defendant had pled guilty to assaulting the officer! So sometimes, Brady or Michael Morton Act violations may not be a prosecutor's fault, even if they're the ones with the legal obligation to turn it over.

The national exonerations registry is a great starting point for identifying innocence cases in your jurisdiction and for more examples of various types of prosecutor misconduct. Check it periodically for cases in your state that may have flown under the radar.

Setting expectations re: "progressive prosecutors"

Lately, we have seen prosecutors elected as "progressives" in America for the first time in nearly a century. But beware these labels. Podcast listeners heard a related discussion toward the end of our June episode.

Before Larry Krasner in Philadelphia, I considered the notion of a progressive prosecutor a myth. Krasner makes the best case for the possibility of a progressive prosecutor. Krasner's memo to prosecutors on charging and sentencing was a landmark moment, and self-styled progressive prosecutors should be judged based on how much of that agenda they're implementing in their jurisdiction. Most Texas prosecutors labeled "progressive," for example, aren't coming close.

But at the end of the day, I still don't believe in progressive prosecutors because the DA's function is fundamentally regressive. As I put it on the podcast, "A prosecutor has just one tool in the toolbox. They lash out with the power of the state to exact retribution on someone who violates its dicta." There is simply no "progressive" function involved in that activity. Their only power, and only leverage, comes from harming people in retaliation for ignoring state pronouncements. When that pronouncement is "don't murder" or "don't rape," the public broadly supports their function (at least until it came to light how often innocent people are convicted). But when that pronouncement is "Don't smoke pot," the prosecutorial function becomes more controversial.

My belief is that the #cjreform movement's focus on prosecutors has been overblown. They're important, but not the only decision makers in the system. And focusing exclusively only on them lets others - e.g., legislatures, police, judges, crappy defense attorneys - off the hook.

MORE: Here's a brief write-up of the panel.


Oprah, not her said...

From the National Registry of Exonerations, percentages of wrongful convictions because of Official Misconduct...

United States (2446 exonerations)is 54%
Texas (357 exonerations) is 22%
Harris County (176 exonerations) is 6%
Dallas County (60 exonerations) is 37%

Yet there is very little remedy taken such as disciplinary actions, sanctions, or criminal charges against those Prosecutors that contributed to the wrongful convictions. If there is no penalty for this misconduct, then is will continue to happen (until Netflix makes a 4-part series on the egregious misconduct.)

Isn't that right, State Bar of Texas? Have you learned nothing? If the SBoT is not going to do their job, then Sunset this organization.

Anonymous said...

An awesome website with specific examples of misconduct is

The latest post is about the Texas ADA who was fired for trying to comply with the Michael Morton Act. The DA fired the assistant because the assistant turned over Brady material to the Defense after he was told not to.
The Texas Supreme Court opined...because the DA has absolute immunity, he can not be sued for firing the assistant. Thus, the fired assistant has no remedy for trying to follow the law or act ethically.

Which begs the question, how many times have ADAs violated the law because they were ordered to by their superiors?

Anonymous said...

The above is why prosecutors should be expected to follow the law. That means complying fully with the Michael Morton Act and prosecuting law violations, including possession of the illegal drug marijuana. It is the legislators job to change the law, and the peoples job to elect the legislators.

Steven Michael Seys said...

Remember, Scott, most innocent persons convicted of a felony are never exonerated.

Anonymous said...

I'd be interested in the dismissal rate of cases in McLennan county after Reyna took over in 2010. Segrest was about as honest a DA as there's ever been but Reyna was about as dishonest as you'll ever find. Not surprisingly, Reyna won the election with support of local law enforcement who were pissed at Segrest for upholding the law and not allowing cops to call the shots. Unlike most prosecutors, Segrest would dismiss flimsy, questionable cases or those he knew evidence had been illegally obtained, whereas most district attorneys won't dismiss those types of cases and will instead keep a defendant jailed with high bond in an effort to force them to accept a plea. Segrest's prosecution model was despised by local cops who felt he should prosecute every case they brought to his office, which Reyna did after he took over, and we all know how that turned out.

Wolf said...

Prosecutors can choose to do much more than "lash out with the power of the state to exact retribution". Here's an example:

Anonymous said...

If a prosecutor can order an assistant to violate the law by withholding Brady material, then the same prosecutor can order an investigator to plant evidence, or destroy evidence (which would otherwise be favorable to the defense), or fabricate a written confession that was never made, or create a false lab report implicating the defendant. There's no downside evidently.

Why do we even have trials in this Idiocracy? Seems like we could save a lot of taxpayer money by just declaring all defendants guilty.

For those Prosecutors (and Judges) who think they are holier-than-thou and above the law, learn from Col. Jessup...

Anonymous said...

It's already a crime for prosecutors to violate the Michael Morton act, but they never get in trouble for it. The legislature can write all of the laws they want, but if there is no one to prosecute the prosecutors, they will continue to disregard the rule of law. Hell, if the law had any teeth in it, former Smith County DA Matt Bingham would be serving a friggin' life sentence.

Quis custodiet ipsos custodes? ("Who watches the watchmen?")

luxuryshoppingwithbitcoin said...

Visit code ninja web development company site now.

When people come to your website, they look at the web design before they look at your services or content. If your web design leaves a good impression on the customers, this would leave a positive impact on them. An unappealing web design would only drive potential customers away.

jimbino said...

re "departments forbidden even from sharing the information...." In English one says, "departments forbidden even to share the information...." If you insist on using "from," try saying, "prohibited from."