For the Texas research, 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.
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 of 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 added.
The Prosecutorial Oversight 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.
The 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.
"Most prosecutorial misconduct is not intentional, but we know from John Thompson's and Michael Morton's cases that when it happens, the consequences can be devastating," said Cookie Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative.
Morton was wrongfully convicted of murdering his wife and spent nearly 25 years in prison before his release in October. Among the suppressed evidence was a police transcript of the victim's mother saying that the Mortons' three-year-old son, who witnessed the murder, told her that his father was not at home at the time; a report from a neighbor observing someone outside the Mortons' house before the murder; and a report on the recovery of the victim's Visa card, which a woman had attempted to use fraudulently at a store in San Antonio two days after her murder.
Texas Supreme Court Justice Wallace Jefferson has ordered a court of inquiry to investigate possible prosecutorial misconduct by former Williamson County prosecutor Ken Anderson in his prosecution of Michael Morton. The Innocence Project, which represented Morton, discovered that evidence of Morton's innocence was withheld from the defense at his original trial in 1987 and called for the court of inquiry to review the prosecution's conduct in the case.
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