What’s to be done with Rogue Prosecutors?


By Alan Bean 

According to Scott Henson at Grits for Breakfast, a bill designed to qualify the absolute immunity currently enjoyed by Texas prosecutors was introduced by Rep. Lon Burnam in the most recent legislative session.  It didn’t make it to the floor.  District attorneys and state legislators have traditionally marched in lock step.  Politicians shore up their tough-on-crime credentials by passing more and more laws and stiff sentences.  Prosecutors use these laws to leverage plea bargains.  It’s a win-win.

Unless you are an innocent defendant.

The Dallas Morning News op-ed referenced below offers some solid suggestions for reining in prosecutorial power and Henson adds some additional suggestions of his own.  But at the root of the problem lies a stubborn fact: we don’t have enough prosecutors in the system to handle the work load.

Consider these quotes from William Stuntz’s The Collapse of American Criminal Justice

The explosive growth of the nation’s prison population after 1970 did not coincide with an explosion in the numbers of police officers, prosecutors, and defense attorneys.  On the contrary: while prison budgets shot up, spending on police, lawyers, and courts rose more slowly, and the number of personnel rose less still.  The number of local officers increased roughly 20 percent in the 1970s and 1980s, the same percentage rise as in the general population; the number of local prosecutors grew by a similar amount.

. . . Spending on lawyers for indigent defendants fell by more than half from the late 1970s to the early 1990s.  While these trends took hold, the number of felony prosecutions rose at least two-and-a-half times . . . The justice system became, more and more, an assembly line in which cases are processed, not adjudicated.

. . .The greater the ratio of cases to personnel, the smaller the opportunity to examine carefully the evidence on which the government’s case rests.  And that opportunity was already small: even before the huge run-up in felony prosecutions, the tendency was for plea bargains to be struck early in the process, before either side had a chance to do much investigating.  That tendency is even stronger in today’s justice system because pleading cases out quickly is a necessity, not a convenience.  The upshot is that noninvestigation is the norm in American criminal litigation, careful gathering of evidence the exception.

As the Curtis Flowers case demonstrates, under-investigation and noninvestigation are the primary reasons for wrongful conviction.  Prosecutors are desperate to settle cases quickly and cheaply.  If we’re serious about curbing prosecutorial misconduct, we need more prosecutors, more police officers, more judges, more courtrooms and more defense attorneys.  I know this is unwelcome news given the prevailing mania for belt-tightening, but it’s true.

‘How to curb rogue prosecutors,’ or, ‘The gathering clouds’

 Grits linked the other day to a Dallas News editorial (behind paywall) published over the weekend (Nov. 12) titled “How to curb rogue prosecutors” which opened:

One thread running through many criminal exoneration cases in Texas involves prosecutors who failed their legal and moral duty to justice and fair play.

Too many of them appear to have been more interested in winning a conviction than airing the whole truth, even at the expense of someone’s liberties.

Lawmakers need to unravel these tangled messes, then find ways to build safeguards against willful or sloppy miscarriage of justice in a district attorney’s office.

Notably, to solve this problem, the News offered three suggestions: A statutorily mandated “reciprocal discovery procedure” where prosecutors must open their files to the defense, improved training (la de da), and most intriguingly, creating state-level civil liability for extreme prosecutor misconduct:

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 bill they’re talking about was Rep. Lon Burnam’s HB 2641, which, as described in this Grits post, would have provided a “a state-level remedy to federal judicial activism” which created the doctrine of “absolute immunity” for prosecutors whole cloth with no statutory basis whatsoever. If you’re really and truly “fed up” with the federal judiciary from a state’s rights standpoint, this should be a cause you can get behind: It’s the ultimate snub, asserting Texas’ rights as a state over decades-old federal judicial fiat. Framed thusly as an expression of 10th Amendment state’s rights, I see no reason why such legislation couldn’t garner bipartisan support, even if it rankled a lot of prosecutors along the way.

Such ideas seem dangerous and heretical to career prosecutors. But we live in a moment when folks in the Tea Party, the “occupy” movement, those groups’ respective fellow travelers, and wide swaths of unaffiliated but alienated voters are fed up with the status quo and potentially open to “dangerous and heretical” ideas. At their user forum, the District and County Attorney Association lobbyist pointed to the Dallas News editorial under the headline, “The gathering clouds.” They can see the storm coming.

In many ways, tackling prosecutor (and police) misconduct remains among the lasts frontiers where criminal justice reformers have made little progress. A lot of the early legislative goals of the innocence movement in Texas have been met. Post-conviction DNA testing was established, then expanded. Eyewitness ID legislation was passed and Texas courts are reexamining eyewitness evidence. Corroboration was required for jailhouse informant testimony and undercover drug snitches. Texas now has the most generous compensation package in the nation for exonerees. New standards are being created regarding biological evidence preservation.

Certainly the task is far from complete. I’d still like to see police required to record interrogations, and in light of recent rulings at the Court of Criminal Appeals, Texas’ writ law needs tweaking so that defendants can seek habeas relief not just based on new evidence but also new scientific findings that discredit old evidence. Thousands of old, untested rape kits discovered at police departments around the state should be vetted not just for who they might help convict but also who might be exonerated. The Forensic Science Commission’s jurisdiction is too constricted and needs to be expanded. With the notable exception of arson cases, no official body has begun to systematically vet bad forensics in old cases. (For example, there’s been no official examination of cases where people were convicted based on since-discredited testimony by dog-handler Keith Pikett in so-called “scent lineups.”) There’s still a lot to do.

But at least on all those issues, what needs to be done is fairly straightforward. Prosecutor misconduct has been among the toughest nuts to crack, in part because there’s a paucity of ideas for how to effectively rein it in. To say the state bar has been ineffective on the topic would be generous. (I’ve heard it said they’ve been “complicit,” which is closer to the truth.) Complicating matters, prosecutors enjoy disproportionate power both in local politics and at the Lege.

There’s a little time – not much, but a little – to figure out the best approach to confront prosecutorial misconduct in the current political environment before the 83rd Texas Legislature is upon us. See Grits’ greatest hit list of ideas on possible legislative solutions to prosecutorial misconduct, and let me know what other clever suggestions you come up with, in the comments or via email. There’s bound to be a way to skin this cat that’ll satisfy everybody across the political spectrum, or at least everyone who’s not just fundamentally against cat skinning in the first place.