Study: Prosecutor misconduct in Texas rarely disciplined

The Texas Tribune has published some of the preliminary data from a report to be released later today (at the forum previewed by Grits below) analyzing Texas cases where appellate courts identified examples of prosecutorial misconduct but the state bar failed to discipline the attorneys. The item by Brandi Grisssom opens:

In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states. ...

In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.

The McEachern case is certainly the only example I know of where a prosecutor has been disciplined by the state bar since I've been paying attention to such things (the actions that led to his probated suspension took place well before the study period), so I'm not surprised this research turned up no others. Those 91 cases, too, are just a sample identified from 2004-2008, Grits was told by one the study's collaborators, and not a comprehensive list. As Prof. Laurin pointed out, the research "explores documented court findings of prosecutorial error and there are many ways in which documented court findings, to the extent they’re publicly available, are not great ways of getting at ... how widespread of a problem there is." Still, it's notable if unsurprising that the state bar took action in none of the 91 cases identified during the period studied.

MORE: Find an excerpt from the press release below the jump:

New Research Illustrates Lack of Accountability for Prosecutors in Texas

New research released today by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The research will be addressed at a symposium today at the University of Texas School of Law that will include panelists with backgrounds from all aspects of the criminal justice system addressing systemic and legal approaches for reducing prosecutorial error and misconduct.

The Austin event marks the second stop on a national tour organized by the Prosecutorial Oversight coalition, which 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.

“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances.  But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor, University of Texas School of Law.

The research released today 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 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.  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.  “What’s clear from this data is that we’re not doing nearly enough to document the scope of the problem and the disciplinary systems as they currently exist are vastly inadequate.”

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.”