Editorials: Weak state bar has failed in watchdog role over prosecutor misconduct

A staff editorial in the Austin Statesman argues that the state bar "must act forcefully in the pursuit of justice" by sanctioning District Judge Ken Anderson and Williamson County DA John Bradley over their roles in withholding exculpatory evidence in the Michael Morton exoneration. A key passage says that:

Any miscarriage of justice is tragic, but there is a level of relief in cases of wrongful convictions that were caused by unintentional errors or mistakes.

The public can take a breath and feel the system corrected itself, however late and unfortunate.

As taxpayers, we financially compensate innocent people who suffer prison terms because mistakes were made. In some instances, district attorneys who prosecuted and judges who sentenced or oversaw those trials are rightly humbled and offer apologies.

But Morton's case denies us that comfort. We're learning that mistakes or unintentional errors were not the cause of an unjust outcome. Instead, we're seeing through court records the actions of an arrogant legal team that bent, broke or entirely discarded ethical rules to convict Morton.

Allegations regarding misconduct focus on Anderson and his trial assistant at the time, Mike Davis. But they also should encompass actions of the current Williamson County district attorney, John Bradley. For six years, Bradley waged a legal battle to prevent the very DNA testing of evidence that freed Morton and pointed to another culprit. Last week, Mark Alan Norwood, 57, was arrested in his Bastrop home and charged with the 1986 murder of Christine Morton. ...

Certainly, there are many district attorneys who abide by the rules and take seriously their duties to seek justice, even when it means losing a case. But there are those who have abused their authority, and they have become emboldened by a weak State Bar that has not acted forcefully enough to address misconduct in the legal profession.

The Texas legal system certainly needs the State Bar watchdog to bark. But a watchdog that is unwilling to bite cannot effectively protect the house.

The Dallas News ran an editorial yesterday (behind paywall) looking beyond the impotent state bar to suggest other routes for preventing or punishing prosecutor misconduct, starting with mandating an "open file" policy for prosecutors:

Many other states operate that way: cards on the table, forget the cat-and-mouse game. Texas’ embarrassment of exonerations should be a strong motivation to fall in line.

Improved training is another step the state should take. There now is no mandatory course or refresher that the state requires of prosecutors to ensure that everyone is clear on obligations to share evidence. Considering the authority that prosecutors wield, there is compelling public interest in making sure they understand their roles in ensuring constitutional rights.

Finally, though a prosecutor can be criminally charged for misusing his position, an individual who is railroaded by a crooked DA has no access to state courts to pursue civil claims.

Legislation was filed this year to provide that access and limit a prosecutor’s immunity, but the bill went nowhere, with no debate. Lawmakers should take another look, give the matter their full attention and hear pros and cons.

The vast majority of prosecutors are honorable public servants and should not have to look over their shoulders in fear of nuisance suits. That could drive them out of the profession.

But there are outliers in any occupation, and they should not be immune from accountability.

The News closed with summaries of four high-profile cases involving prosecutor misconduct:

Dale Lincoln Duke, 60, was released in Dallas County on Nov. 4 after 14 years in prison, his conviction on child abuse charges declared “unjust” by a judge. The DA’s office said a prosecutor withheld evidence that the child’s grandmother thought the girl was lying.

Chelsea Richardson, 27, won an appeal Nov. 1 that got her off death row and will mean life in prison. She was convicted of masterminding the murder of her boyfriend’s parents in Mansfield, but notes withheld from the defense show a different defendant may have played the key role.

Michael Morton, 57, was freed in Williamson County on Oct. 4 after nearly 25 years in prison for the murder of his wife. DNA tests implicated another man, who was arrested last week. Defense lawyers charge that the DA withheld information that Morton’s son saw a “monster” do the killing. Now a judge, the district attorney is under investigation by the State Bar of Texas.

Anthony Graves collected $1.4 million in compensation July 1 for a bogus conviction in the murder of six people and 18 years in prison, including death row. Graves, 45, was freed in October 2010. Prosecutors proclaimed him innocent and said the former Burleson County DA manipulated witnesses to gain a conviction.

See Grits' compilation of possible legislative solutions to prosecutor misconduct.