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Prosecuting the Prosecutor

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"(Anderson) affirmatively told the trial court that he had no evidence favorable to the accused," the lawsuit said. "That statement was false."

Morton was freed last year after DNA testing not available at the time of his trial revealed his wife's blood and DNA from another man on a bloody bandanna found near the Mortons' house around the time of the killing. The DNA tests are not mentioned in the disciplinary petition against Anderson.

Research by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas.

The coalition includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project's prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.   

The research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.   The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas' public attorney disciplinary records from 2004 to November 2011.   

From 2004 to 2008, courts found that prosecutors committed error in 91 cases.   Of these, the courts upheld the conviction in 72 of the cases, finding that the error was "harmless."   In 19 of the cases, the court ruled that the error was "harmful" and reversed the conviction.   From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.   

The coalition notes that this review doesn't begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal.   Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren't published. Furthermore, the distinction between harmful and harmless is problematic because it doesn't illustrate how serious the misconduct was, merely that the court determined that it wouldn't have affected the ultimate outcome of the trial.    

Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction.   (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed.  

Courts were more likely to reverse in cases where prosecutors failed to turn over "Brady" material (information that pointed to the defendant's innocence), which occurred in 8 of the cases, resulting in 7of the reversals.   Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).

"As best we can determine, most prosecutors' offices don't even have clear internal systems for preventing and reviewing misconduct.   But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct," said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.  

"We don't accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there's no reason we should do so for prosecutors," he said.

Results from this study indicate that of the 65 DNA exoneration cases involving documented appeals and/or civil suits addressing prosecutorial misconduct, 31 (48%) resulted in court findings of error, with 18% of findings leading to reversals (harmful error).

While not a perfect comparison, there has been one large, nationwide study of prosecutorial misconduct. The Center of Public Integrity found that among all 11,452 documented appeals alleging some type of prosecutorial misconduct between 1970 and 2002, 2,012 appeals led to reversals or remanded indictments, indicating harmful error--a rate of 17.6%. This is nearly identical to the rate of harmful error findings of 18 % in the DNA exoneration cases.

Over the past decade, the power of judges has decreased because of sentencing guidelines and other factors, while the power of prosecutors has jumped off the charts. Bar associations have found accusations of prosecutors' misconduct embarrassing -- this is peer review with potentially career-ending authority -- and difficult to prove.

But it's possible that lawyers, at least those in Texas, will see the findings of the Court of Inquiry as a too-long-delayed wake-up call.

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http://billfisher.blogspot.com

William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)
 
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Dear Bill,I just read your article about Michael M... by Disillusionist on Saturday, Nov 24, 2012 at 3:43:32 PM
Texas has far to go to balance its infamy with exe... by Gloria Grening Wolk on Saturday, Nov 24, 2012 at 3:49:12 PM
when you fator in the murder of the other woman th... by Archie on Saturday, Nov 24, 2012 at 9:23:21 PM