From Texas Lawyer: Report Recommends More Prosecutor Oversight

I came across this story while following up a few searches related to the story below about the lack of ex-defense attorneys on the Supreme Court. One of the cases mentioned - Brady v. Maryland - established that it was unconstitutional for prosecutors to withhold exculpatory evidence from defense attorneys in a trial. But it still happens.

The article points out that there are no mechanisms in place to force the issue. This points out that just because the courts rule on something, there is no necessary reason to believe that the decision will be enforced - which points to a basic weakness of the judicial branch.

- Click here for the article.

Even when prosecutors engage in intentional misconduct to win convictions, there are nearly no government systems to hold them accountable, according to a new report by the New-York based Innocence Project.

"Our investigation revealed a severely inadequate, essentially non-functioning external disciplinary process and a problematic lack of transparency," said the March 29 report, "Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson."

The report said that most prosecutors do their jobs in good faith, wanting to fulfill their constitutional and legal obligations. But they're subject to stress, demanding jobs, biases and other human realities, it said. Mistakes occur and in rare cases, a prosecutor commits deliberate violations and it leads to a wrongful conviction.

Among other things, the researchers studied judicial findings and attorney disciplinary cases about prosecutorial error and misconduct between 2004 and 2008 in Texas, Arizona, California, Pennsylvania and New York. They found 660 cases where courts identified prosecutorial misconduct. The errors were harmless in 527 cases, but they were harmful and lead to reversals in 133 cases. Only one of those prosecutors was disciplined.

. . . The report made recommendations to improve oversight over prosecutors.
One set of recommendations is aimed at prosecutors' offices. They should have written policies about discovery and other defendants' rights matters; provide more ethical training to prosecutors; create internal review procedures to find misconduct; file annual reports that identify errors and misconduct; and make sure to correct such problems during a prosecutor's annual employee review.

Other recommendations are for the courts. Judges should issue orders requiring prosecutors to produce all mitigating or exculpatory evidence and require that prosecutors certify that they've asked law enforcement for favorable evidence. Judges should be reporting instances of prosecutor misconduct and error, and state supreme courts should enforce reporting requirements.

Some of the recommendations are for state bar disciplinary authorities. It should be easier for claimants to make grievances about prosecutor misconduct and ineffective assistance of defense counsel, the report said. When a court finds unethical behavior by a prosecutor, a disciplinary committee should automatically file an ethics complaint.

Among other recommendations, the report said that states should pass open-file laws, like in Texas, requiring prosecutors to share most evidence with defense lawyers. An independent state agency should have oversight over prosecutors. It also suggests that lawmakers should pass legislation to limit prosecutors' immunity from civil lawsuits.

Some related material:

- Do Supreme Court Justices Understand How Prosecutors Decide Whether to Disclose Exculpatory Evidence?

From Radley Balko: Sorry about your time on death row, pal. Nothing we can do.

I've posted a few things on the problem the innocence of a convicted felon poses for the Texas criminal justice system. Here's another - though it is targeted to the problem nation-wide. It turns out that it is very difficult for prosecutors to be held responsible for misconduct.

- Click here for the article.

If you’ve been wrongly convicted through prosecutorial misconduct, there are a few ways you can try to hold the government accountable. The most obvious way would be to sue the prosecutor himself. This is just short of impossible. Anything a prosecutor does in his official capacity is protected by absolute immunity — a mighty, nearly impenetrable shield created by the Supreme Court in the 1970s. Your best hope is if your prosecutor committed the misconduct while acting as an investigator — that is, while performing tasks more associated with policing than with prosecuting. If so, your prosecutor would then be protected “only” by the qualified immunity the courts have given to police. But even that is still a pretty high bar to clear.

You could also try to sue the municipality that employs your prosecutor. It’s called a Monell claim. But this, too, is difficult. You’ll have to show that not only did your prosecutor commit misconduct that violated your constitutional rights but there’s also a system-wide pattern or practice of misconduct in that particular jurisdiction. It isn’t enough merely to show that your prosecutor did this to you. You’ll likely to need to show that other prosecutors in the same office did similar things to other people.

Since judges and prosecutors probably aren’t going to open the files of other cases for you, winning a claim like this is likely to happen only once other people have already shown misconduct from the same office and, presumably, hadn’t yet found enough examples to establish a pattern. If the misconduct is bad and persistent enough, presumably at some point — a point that isn’t really clear but appears to be wholly up to the subjective interpretation of whatever federal judge happen to hear your case — enough people will have shown enough misconduct to establish a pattern. Provided you include them all in your claim. But no matter how many cases come after, those people who filed first, and lost, probably won’t get to have their cases heard again.

From The Texas Tribune: Judge Ken Anderson Resigns Amid Ethics Lawsuit

This picks up a story we highlighted in the spring.

The state district judge was found to have withheld evidence in a murder case while he was a prosecutor in 1986. He is now facing civil and criminal proceedings, but has already been accused by the State Bar's Commission for Lawyer Discipline of violating several of its rules of disciplinary conduct.