A few days ago, Ross Ramsey, a columnist with the Texas Tribune, argued that Texas prosecutors are no longer “unassailable.”
“An elected prosecutor used to have one of the most respected jobs at any level of Texas government,” Mr. Ross writes. “Running a political campaign against a sitting prosecutor in Texas was a job for egotistic dunces and legal-minded Quixotes. Even weak DA’s were invincible.”
But, he argues, “That cachet is taking a beating.” He cited, “One prosecutor is in jail. A former district attorney is facing charges related to sending an innocent man to jail. One county spent nearly $400,000 settling a sexual harassment charge against its DA. Another prosecutor is fighting contempt of court charges after refusing to testify in a prosecutorial misconduct inquiry.”
There are indeed some noteworthy developments. “In Williamson County, a place known for show-no-mercy law and order, Republican voters ousted a longtime district attorney last year. They had their reasons, but the remarkable thing is that it was even possible.”
John Bradley was challenged in the Republican primary, after a couple of high-profile controversies.
“He headed the inquiry into a notorious arson case in which Cameron Todd Willingham was executed after being convicted of killing his children. And Bradley was the district attorney accused of sitting on evidence that might have freed Michael Morton, who spent nearly 25 years in prison for a murder he did not commit,” Mr. Ross writes.
He adds, “Ken Anderson, Bradley’s predecessor and now a state district judge, is fighting charges that he withheld evidence in Morton’s prosecution. His lawyers are telling the judge’s judge that even if Anderson broke the law – they’re not conceding that point – the statute of limitations had expired more than 20 years ago.”
Still, I think the evidence is mixed, at best.
Take the case of Michael Morton, who lost 25 years of his life wrongly convicted of killing his wife. He was later exonerated by DNA evidence. The misconduct by the prosecutor, Mr. Anderson, was so egregious in this case that he now faces criminal charges for failing turn over favorable evidence pointing to Mr. Morton’s innocence, despite specific requests from the defense and an order by the trial judge to do so.
The court made specific findings that Mr. Anderson knew of evidence supporting Morton’s innocence but intentionally failed to disclose it to the defense.
And while Mr. Anderson faces charges, experts worry that the charges dating back 25 years have long since seen the statute of limitations expire.
You have the equally egregious John Thompson case and the New Orleans prosecutor’s office that was first slammed, and then somewhat absolved by the US Supreme Court, despite the fact that the prosecution not only hid exculpatory evidence – they burned it.
His conviction overturned, Mr. Thompson was awarded $14 million by a jury for the wrongful imprisonment, but the US Supreme Court overturned it in what some called “one of the most cruel Supreme Court decisions ever,” with Justice Clarence Thomas ruling that the district attorney can’t be responsible for the single act of a lone prosecutor.
The New York Times argued his ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”
There have been at least some signs of hope, however.
Earlier this month, we reported that the California Bar was going after a prosecutor who engaged in prosecutorial misconduct.
A press release reports, “A State Bar Court hearing judge has recommended disbarment for Del Norte County District Attorney Jon M. Alexander for communicating with a defendant without her attorney’s consent, withholding evidence from the defense and acts of moral turpitude.”
Mr. Alexander has been placed on involuntary inactive status, effective April 7, “which means he will not be entitled to practice law.” The disbarment would not go into effect until approved by the California Supreme Court.
But studies both in California and New York note that rarely are prosecutors charged or held to answer for their mistakes.
These are not small mistakes. The mistake in the Michael Morton case cost Mr. Morton 25 years of his life and possibly the life of another innocent party. A similar thing happened in the case of Maurice Caldwell.
Mr. Caldwell, due to errors in the investigation process, ended up spending two decades in prison for a crime he did not commit. In the ensuing years, the man identified now as the actual killer, who has admitted to being the actual killer, killed another individual.
The Veritas Initiative report also calls the state bar to the task. They write, “By casting a blind eye to prosecutors who place their thumbs on the scale of justice, judges, prosecutors and the California State Bar are failing to live up to their responsibilities, fostering misconduct and opening the door to the inevitable – the conviction of the innocent and the release of the guilty.”
“It is time to acknowledge the problem and take needed action,” they write.
So we have a long way to go, but still I think there is reason to hope. The work of the Innocence Project has changed the landscape, both in terms of pushing for reforms in police techniques to avoid the forensic and eyewitness mistakes that have led to wrongful convictions in the past.
But a considerable problem remains that many of these mistakes were made in good faith, although some, such as in the Michael Morton and the John Thompson cases, to name two egregious examples, were done maliciously and knowingly.
The US Supreme Court effectively gave prosecutors immunity from civil suit – which is the most reasonable avenue an individual has to redress their grievances. Relying on prosecutors to prosecute prosecutors is simply not going to happen, except in the worst of the worst – such as Ken Anderson, who is clearly becoming the poster-child for bad prosecutors.
“Lawyers battle all the time. They call one another names and do their best to win inside and outside the courthouse. But the prosecutors generally win, at least in the public’s view,” Ross Ramsey writes.
However, he notes that, while Texas DA’s used to be indestructible, that may be changing.
“The questions about Bradley led to misgivings among the people who elected him. It is clear that Lehmberg and Anderson are in legal and political trouble, but it is not clear whether they will remain in office or appear on future ballots. Shannon and Watkins, if nothing else, have supplied opponents with something to talk about in the next elections,” he said referencing several other cases his article covered.
“Times have changed,” he wrote. “In the 1980s, crime was the major issue in many local and state elections. In the early 1990s, the people who won those elections went on an epic prison- and jail-building spree. Voters are worried about other things now. Wrongful convictions and prosecutions have shaken public faith in the criminal justice system. And, it turns out, in the people at the top.”
It was a similar point that Ken Burns made in The Central Park Five – that the crime wave of the 1980s produced the conditions where the authorities were desperate for a quick high profile win to show the public they could handle the problem.
It is only now, with the crime wave receding and the public more at ease, that we can more critically evaluate the consequences of our policies. And that has people like me nervous that this movement toward accountability and better practices and prison reform is simply fleeting and could cycle back with the next uptick in violence.
—David M. Greenwald reporting
