48 Hours Mystery to feature Anthony Graves' story

Via the Texas Tribune, we learn that CBS News' 48 Hours Mystery will feature a segment on Anthony Graves' false conviction tonight. See the full story.

Anthony Graves and Nicole Casarez on Reasonable Doubt

Several people have asked me to post the Reasonable Doubt video with Anthony Graves and Nicole Casarez on the blog.  Special thanks to Kelly Siegler for putting us in touch with Anthony and Nicole.  Additional special thanks to Franklin Bynum for putting the show on the Net.


Reasonable Doubt, December 15, 2011, Anthony Graves and Nicole Casarez from HCCLA on Vimeo.

This Week's Reasonable Doubt's Special Guests (12/15/11)

Normally I don't write about Thursday's episode of Reasonable Doubt until the morning of the show.  That's because we don't know who our guest is going to be until a day or two before.

This week is different, because Todd Dupont and I are bringing you two very special guests that we have been trying to get on the show for quite some time.

With the help of Kelly Siegler, we are proud to announce that this week's Reasonable Doubt guests will be Anthony Graves and Nicole Casarez.  Mr. Graves, as you probably know, served 19 years on Death Row for a crime he did not commit.  Ms. Casarez is an attorney and professor at the University of St. Thomas who was instrumental in proving Mr. Graves' innocence.

It is going to be a great show, and as always, we will be taking your calls and questions.  You can watch it live on Thursday, December 15 at 8:00 p.m. on television or on the web by clicking here.

What can the Texas Legislature do to reduce prosecutorial misconduct?

In the wake of Michael Morton's recent DNA exoneration in Williamson County - in which prosecutors withheld exculpatory evidence for more than two decades before DNA proved another man committed the murder for which he was convicted - prominent state leaders are now asking what exactly could be done at the Texas Legislature to reduce prosecutorial misconduct. According to the head of the Texas District and County Attorneys Association, Rob Kepple, however, the problem can't be fixed with new laws. He told the Texas Tribune that:

a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.

“If somebody didn’t play fair back then,” he said, “I’m not sure exactly what law we change today to address it.”

I wish Mr. Kepple had revealed his view that new laws won't fix ethical lapses many years ago. If he had, maybe Texas wouldn't now have more than 2,400 felonies on the books, including most recently a new 3rd degree felony for misrepresenting the size of a fish. But let's set aside for now Kepple's new-found and likely short-lived skepticism that changes in criminal law are capable of altering undesirable behavior. On the assumption that the Legislature is not completely impotent to address the problem, what steps might be taken to reduce prosecutorial misconduct?

In this writer's view, the best, simplest fix would be to to eliminate "absolute immunity" for prosecutors. While Texas legislators can't overrule federal court decisions ("absolute immunity" exists in no statute but is a judicial creation from the US Supreme Court), the Lege would have to create it's own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last session which would do just that in reaction to the Anthony Graves case. (See Grits' coverage of the legislation.)

There was a committee substitute offered on that bill that would have given prosecutors "qualified immunity," which is the same as for police officers, instead of eliminating immunity entirely. Personally I'd prefer no immunity - the same standard under which defense attorneys operate. Cops' get qualified immunity - which still protects them from virtually all civil liability - because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn't be held liable in civil court even for egregious, intentional misconduct and that there is no "free-standing due process right not to be framed."

One of the boldest ideas I've seen came from Dallas DA Craig Watkins, who at one point proposed criminal liability for Brady violations by prosecutors. That would certainly turn around the incentives for win-at-all-costs prosecutors who currently have little disincentive beyond their own, personal integrity to avoid cheating to win.

Yet another possible solution I'm gravitating towards: The problem with, say, prosecutor-turned District Judge Ken Anderson in the Morton Case is that the statute of limitations on grievances against lawyers is only four years, so no matter how bad his misconduct the State Bar can't touch him. Grits would like to see the statute of limitations on Brady violations begin to toll when the concealed information is discovered, not at the time of misconduct as is currently the case. Indeed, when Craig Watkins suggested criminal sanctions for prosecutors withholding evidence, ironically that's the fix Williamson County DA John Bradley preferred! The Dallas Morning News reported (no longer online) that while Bradley considered criminalizing Brady violations "ridiculous," he did not argue against "changing state bar rules to allow grievances to be filed when they are discovered rather than within four years of the alleged misconduct, as currently required. There is no recourse when Brady violations are discovered decades later," reported the News.

That makes loads of sense to me. The whole problem with "Brady" violations - i.e,. prosecutors withholding exculpatory evidence - is that if they conceal the evidence, nobody knows to file a grievance against them. In the Morton case, the statute of limitations on Judge Anderson's alleged misconduct should begin tolling from 2008 when the hidden, exculpatory evidence was discovered, not from 25 years ago when the apparent conspiracy to conceal that information began. Ditto for John Bradley who, as the Trib mentioned, "resisted efforts by Morton’s lawyers to use public-information laws to gain access to evidence in the original prosecutors’ files."

Another rather minimalist but potentially powerful idea: make courts actually name prosecutors responsible for Brady violations or other misconduct in their rulings. Right now when courts find Brady violations, court orders do not name the lawyer who withheld the evidence so it's impossible without monumental research efforts to figure out who was responsible. To get an idea of what's required to uncover prosecutorial misconduct, see the methodology from this one of a kind report (pdf) from California by the Veritas Initiative in California on prosecutorial misconduct to see how difficult it is right now to even gather that information. (They found that out of 707 cases where courts found misconduct, only 6 prosecutors were disciplined by the state bar, which is 5 more than we've seen in Texas over the same period.) California's court information structures and ours are similar on this score, and the exact same method would be required to identify Brady-violating prosecutors here.

A report by the Justice Project ("Improving Prosecutorial Accountability: A Policy Review," no longer online), suggested these reforms:

States should require that prosecutors’ offices adopt and enforce clearly defined policies on the appropriate use of prosecutorial discretion.

States should adopt open-file discovery in criminal cases, increasing the transparency of the criminal justice system and reducing the risk that prosecutors will withhold evidence from the defense.

States should effectively respond to misconduct by establishing prosecutor review boards with the power to investigate and sanction prosecutors.

States should require that all prosecutors participate in training and continuing legal education.

Of suggestions from the Justice Project, Grits views mandating an "open file policy" as a major, positive step, but the others strike me as feel-good approaches that wouldn't do much in practice. Prosecutors in Texas have fought legislation to mandate an open-file policy tooth and nail, arguing that they'll only agree to it if defense attorneys are required to open up their files as well. (The difference, of course, is that defendants have a 5th Amendment right against self-incrimination, while prosecutors are required to seek justice, not convictions.)

Finally, perhaps as or more important than any of the above reforms would be simply to re-invigorate Texas' open-records statute so non-lawyers can access more law-enforcement information without going to court. In the Morton case, exculpatory evidence was found via the Public Information Act in 2008 instead of through discovery, and that's how a lot of Brady violations are discovered, often years after the fact.

Twenty years ago, Texas had the first or second strongest open records law in the country on police records, but first the Texas Supreme Court then the Lege completely gutted access to law-enforcement records under the Public Information Act in 1996-1997. In recent years state Rep. Harold Dutton has been carrying a terrific bill to change the law back to the Jim Mattox-era Attorney General interpretations that the Lege and courts overturned in the '90s. As a practical matter, that might be the best way to expose prosecutors withholding exculpatory evidence, essentially crowd sourcing the task to interested parties around the state who file thousands of open records requests with law enforcement and DAs offices each year. That won't hold prosecutors accountable, per se, at least in the sense of punishing them, but it's probably the best way to ensure more exculpatory evidence is eventually found. Now that access to such records in Texas has been gutted like a fish, Florida's statute is probably the best-in-the-nation example of what open-records law should look like for law-enforcement in a free and open society.

That's pretty much the array of reform ideas I've come across, but Grits welcomes reader suggestions for other approaches that might get at the problem from creative or unexpected angles. There's more than one way to skin this particular cat and only now - thanks in large part to the Anthony Graves and Michael Morton cases - are policymakers in Texas beginning to seriously discuss exactly how the Legislature might go about reining in over-ambitious prosecutors who are willing to cheat to win.

RELATED: State Bar should sanction prosecutor from Michael Morton case but almost certainly won't.

New Chronicle Blog Post

This is probably the most untechnological way of "linking a blog", but there is a new post on my Chronicle website about Charles Sebesta and the Anthony Graves case.  You can get there by clicking here.

An Aggressive Prosecutor

One of the things that I am not proud to admit about myself is that I do actually have a subscription to the Houston Chronicle. In my defense, it is only a weekend subscription and I have it because I do like to kick back on Sunday mornings and read the newspaper and drink coffee.

This morning's edition, however, has a column in it from Rick Casey that (as of this writing) still hasn't hit the on-line edition, so I guess for once, it at least helped me get a head start on writing a post. The title of Casey's column nearly made me laugh out loud. It read:

My Fantasy: Siegler puts DA on trial.

Now, nevermind the fact that Freud could have a Field Day with Mr. Casey based on the title alone, I was still shocked to see Casey write something that could even remotely be considered complimentary of Kelly Siegler. Let's face facts, the Houston Chronicle wouldn't say nice things about Kelly if she took a dinner spoon, dug a mile into the earth, and rescued 33 Chilean miners completely by herself.

Kelly Siegler represents to the Chronicle and its staff something that they disapprove of: an "aggressive" prosecutor. One who actually knows her job and the law, and enforces it to the best of her ability, regardless of public perception. For some reason, we live in a city where the local newspaper treats the profession of prosecution with same resentment of a high school senior who got caught spiking punch by his teacher.

And in the world of those kill-joy prosecutors, there was never anyone better at it than Kelly.

But damn, what to do when Kelly actually is pointing her accusations at the actions of another prosecutor?

One like Charles Sebesta who truly broke the law, pressured and manipulated witnesses, and sent a factually innocent man to Death Row. A guy who decided that the preliminary readings of a high-profile case were enough to demand prosecution in his small town county, and then bent the facts to meet his theory of guilt. Someone who clearly didn't know what he was doing, but wanted to look good while doing it in the public perception.

Well, then, Rick Casey guesses it would be okay if Kelly were to prosecute somebody like Sebesta. I guess, in Casey's mind, as long as she were feeding on one of her own profession, then it would be okay to let her do her job.

The reality of the situation, however, is that Casey is just finally acknowledging something that most prosecutors have always felt, and that is that bad prosecutors like Charles Sebesta are hated even more by other prosecutors than they are hated by the general public. Prosecutors like Sebesta (and Mike Nifong before him) give prosecutors ulcers because they rock the credibility of prosecutors everywhere.

And yes, before somebody else points it out, Chuck Rosenthal gave all prosecutors a pretty big kick in the crotch with his actions, too.

My point is that while Casey and the Chronicle staffers loved taking potshots at Kelly Siegler when she was running for D.A. because she was too "aggressive", they would suddenly love to have her back to prosecute somebody like Sebesta. It is almost like they are suddenly getting a perspective on what it is like to be a victim of crime and hoping you have a good prosecutor trying it.

And don't get me wrong, an "aggressive" prosecutor is not necessarily synonymous with a "good prosecutor".

But the biggest fallacy in logic that the Chronicle always seemed to make was that being a good prosecutor was mutually exclusive from being an aggressive one as well.

Kelly was always both, and I know that the actions of prosecutors like Sebesta, Nifong, and even Rosenthal made her sick to her stomach. In all the criminals she prosecuted over the years, I can guarantee you that she has much more contempt in her heart for Charles Sebesta than for, say, Susan Wright.

I'm sure that based on this post, I will get my usual taunts from folks like Rage and Grits, pointing out that a defense attorney such as myself shouldn't have any clients since I'm so pro-prosecution.

Whatever.

Yeah, you know what, I'll admit it. I'm very pro-good prosecution. Even when it is aggressive.

I will sing the praises of a good prosecutor who knows the law and knows the facts of his or her case. One who doesn't hide the truth or try to twist the law. One who will sign a dismissal when the facts or even compassion calls for it on one case, and then will turn around and seek the death penalty in the next one. One who, at the ends of the day, strives to do what is right, and isn't even afraid to do it aggressively.

I'm a defense attorney and the job of defending is on me. Dealing with a good prosecutor makes my life and my job easier, believe it or not. Even when that prosecutor is telling me things I don't want to hear. I can't change the facts of my cases, but I'll always respect a good fight with a good prosecutor who I trust.

And for the record, there are still many many good prosecutors left in the Harris County D.A.'s Office.

It strikes me as sad how much disdain the Chronicle had for Kelly Siegler during her 2008 campaign for District Attorney. I never quite understood why they thought Kelly's aggressiveness made her somehow less worthy of the job than a career-politician who was more adept at saying things the public wanted to hear. You would have thought that city newspaper folks would have dug a little deeper into what really makes a truly good District Attorney.

Who is truly the better candidate to be a District Attorney? A pandering politician or an "aggressive" prosecutor?

I'm sure that today Anthony Graves wishes he had an aggressive prosecutor like Kelly Siegler back in 1992.