Posts Tagged ‘Innocence Project’

What all my criminal defense attorney pals long believed to be true got some supportive press this week along with some empirical backing. Defense lawyers know the criminal system is broken largely because of prosecutorial misconduct and the failure of some courts to act as “the guardian of our constitutional rights.”

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4f/M2500_washed_sand_on_conveyor_%286238147930%29.jpg/320px-M2500_washed_sand_on_conveyor_%286238147930%29.jpgIndeed, as one of those defense lawyer friends who’s also a scholar writes, “Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through post-conviction proceedings.”

Moreover, in the words of a dissenting jurist, criminal defendants, especially the indigent, are treated like just another fungible item to be shuffled along on a criminal-justice conveyor belt.”

Several days ago, Nina Morrison, a senior staff attorney at the Innocence Project in New York, wrote a scathing op-ed in The New York Times, What Happens When Prosecutors Break the Law?”

https://cdn.morguefile.com/imageData/public/files/c/click/preview/fldr_2008_11_08/file000521358819.jpg“All too often,” she wrote, the justice system“falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.”

Relying on a recent case to make the point that misconduct by prosecutors too often goes unpunished, she discusses what happened when Suffolk County, NY homicide prosecutor Glenn Kurtzrock was caught violating Brady v. Maryland, 373 U.S. 83 (1963). This is the U.S. Supreme Court decision that requires prosecutors to turn over any materially exculpatory evidence in the government’s possession to defendants. Well, Kurtzrock was caught withholding exculpatory evidence in violation of Brady in multiple cases.

“So what happened to Mr. Kurtzrock?” Morrison asked.


Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.

And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”

The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.

Nina Morrison’s commentary should be widely read.

Verifiable support.

Empirically speaking, the current Houston Law Review as usefully summarized by the website, The Open File, at TX: In Harris County Capital Cases, Prosecutors Get to Be the Judges,” discusses what they call a “thorough and definitive” essay, “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” by Jordan Steiker, James Marcus, and Thea Posel.

It’s about “how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.”

The researchers examined 199 Harris County capital post-conviction cases since 1995 to find that

Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

[The lawyers, policy advocates, law professors and students at The Open File were galvanized to write about prosecutorial misconduct and system failure by the 2011 U.S. Supreme Court case, Connick v. Thompson, a decision that also raised my hackles here.]

But what’s most concerning about the Harris County case study is what The Open File author opined, “More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.”

And summing up, he declared, “Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.”


Credits: “washed sand on conveyor,” by Peter Cravens, Wikimedia Commons, creative commons attribution generic license; “justice,” morguefile.com.


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Here’s a switch, last week Brian Schowalter, a criminal defense lawyer in Durango, Colorado was on the receiving end of a grand jury indictment brought by the district attorney who alleged Schowalter had refused to turn over evidence to the prosecution.

I know nothing about the merits of the case against Schowalter but in a show of support 10 criminal defense lawyers did sit behind the accused at his court appearance on Tuesday, August 13th. And Schowalter’s defense lawyer called the charge “outrageous” while a local colleague added, “It sends a chill through attorneys when they see the district attorney will not only grieve you, but he will use whatever criminal power he’s got to get his way in a case.”

Ham sandwich and short hairs.

File:Ham sandwich.jpgIsn’t this rich? Forget for the moment that after the grand jury indictment, Schowalter must have felt like that chewed-up indictable ham sandwich.

Here we have the otherwise unheard of instance of a defense lawyer accused of supposedly withholding evidence — when it’s something that at least to me, seems more likely to occur at the hands of prosecutors — not defendant’s counsel.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/7/77/Daumier_dimanche_au_musee.jpg/582px-Daumier_dimanche_au_musee.jpgAs George Carlin once said, “Not only do I not know what’s going on, I wouldn’t know what to do about it if I did.”

In any event, it appears that prosecutors are increasingly being outed for playing fast and loose with the Brady Rule — the unanimous U.S. Supreme Court ruling declaring prosecutors’ have a constitutional obligation to turn over exculpatory evidence to the defense. Also see “A Fair Trial Remedy for Brady Violations – Yale Law Journal.”

File:Wenceslas Hollar - Man with short hair and gown tied at neck (State 1).jpgThe difference here is that unlike that Durango defense lawyer facing a felony charge, prosecutors are rarely brought up by the short hairs for ethical lapses or prosecutorial misconduct.

What me worry?

And it’s not because of any halos either, even though some prosecutors do think they’re better than everyone else at self-policing.

File:Alfred E. Neumann.jpgAnd besides, a lot of them don’t think there’s a problem with the current ethical regimen. Or as Sam Goldwyn famously said about himself, prosecutors may admit to not always being right — but they’re never wrong.

So where’s the problem?1

Meantime, don’t worry about any supposed infrequent ‘lapses’ that cost the wrongfully convicted years behind bars. The easiest outrage to bear is always somebody else’s.

taco bell employee licking shellsWhat’s more, as some D.A.s contend, it’s not like defense attorneys aren’t also above misbehaving — since they’re “unhampered by any special ethical responsibilities to be fair or to seek the truth, and they know for certain that their actions will never be reviewed as part of a claim of “misconduct.” But for a different look, see “The Legal Profession’s Failure to Discipline Unethical Prosecutors.”

All the same, it’s still headline news when prosecutors are atypically brought up on charges, including most recently that notorious Texas former prosecutor turned jurist, Judge Ken Anderson and the case of Michael Morton. Such was the notoriety of the Morton case that it became both springboard and linchpin to passage of the Michael Morton Act, the DA accountability legislation that Governor Rick Perry signed into law this past May

Prosecutorial misconduct.

The problem of misconduct is not as uncommon as you’d like to think. But it’s the lack of prosecutor accountability that appalls.

File:Himmelsstürmer staunen.JPGUnaccountable? How about a New York Times story about New York prosecutors also reporting that “In California, ‘prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence,’ according to a study by the Northern California Innocence Project and Santa Clara University School of Law. In some 600 cases in which courts found there had been prosecutorial misconduct, the study found, only six times did the State Bar discipline the prosecutor.”2

Or take, for example, an investigation by ProPublica, an independent investigative news organization, that found 30 cases in New York over the past 10 years where convictions had been overturned because of prosecutorial misconduct — but where only once was a prosecutor subject to disbarment, censure or suspension. Also see Out of Order When Prosecutors Cross the Line.”

boy in coat and hat sticking tongue outIndeed, in April of this year, came news that Del Norte County, California District Attorney Jon Michael Alexander reportedly became the state’s first sitting prosecutor to face disciplinary charges. See the Opinion.

But at least here in Arizona, any proposed changes to the ethical status quo governing prosecutors are according to some prosecutors, “a solution in need of a problem.” Which reminds me of course of what Ted Turner used to say, “If I only had a little humility, I’d be perfect.”


[1] For almost two years now, the Arizona Supreme Court has been weighing a proposal to amend Rule 42, ER 3.8, Rules of the Arizona Supreme Court, that would further clarify prosecutorial obligations concerning when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense and to examine the circumstances when a prosecutor has a duty to disclose, a duty to investigate, and a duty to do something to remedy the conviction of an innocent person. Generally, the prosecutorial bar is opposed to any changes. See, for instance, Prosecution Ethics: A Post-Conviction Duty Pro-Con – Lawyers

[2] Also see “Prosecutors Shouldn’t Be Hiding Evidence From Defendants …” and “Tainted Trials, Stolen Justice: Study reveals questionable conduct by attorneys” and “Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases.”


Photo Credits:”surprise,” by Mary at Flickr via Creative Commons-license requiring attribution; “ham sandwich,” by Fancy steve via Wikimedia Commons under  the Creative Commons Attribution-Share Alike 3.0 Unported license;”disgusting,” by John Lambert Pearson at Flickr via Creative Commons-license requiring attribution; Dimanche au musee by Honoré Daumier at Wikimedia Commons, public domain; Man with short hair and gown tied at neck by Wenceslaus Hollar at Wikimedia Commons, public domain; A postcard with the public domain “me worry?” face that later inspired Mad magazine‘s Alfred E. Neuman, author unknown, Wikipedia Commons, public domain;Taco Bell Worker Licking Shells, via Facebook; Freilandtheater Käthe und Helene by Stefan Doering at Wikimedia Commons, public domain.

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The New York Times Editorial Page weighed in this morning onJustice and Prosecutorial Misconduct,” which was all about the Texas case of Michael Morton. The Innocence Project rightfully deserves a lot of credit for getting Morton exonerated. He was recently released after being wrongly incarcerated for 25 years.

I just blogged about “Michael Morton and another recurring inquiry into alleged prosecutorial misconduct” and how Morton’s lawyers turned up problems with critical evidence that was withheld in the original trial and which – had it been shared – might have kept Morton from rotting in prison for a quarter century.

At the original trial, Williamson County D.A. Ken Anderson was front and center and given the facts that have now turned up, Morton’s lawyers have filed pleadings asking for an investigation into Ken Anderson’s conduct as District Attorney. The thing is, though, that Ken Anderson is now District Judge Ken Anderson.

Nevertheless, Morton’s lawyers want the Texas State Bar and the State Commission on Judicial Conduct to review whether any laws were broken and more significantly, if Judge Anderson ought to be removed from the bench and disbarred.

As the Times editorialized, “The Innocence Project’s report makes a compelling case that Mr. Anderson, now a state judge, disobeyed “a direct order from the trial court to produce the exculpatory police reports from the lead investigator” in the case.”

Although I’m gladdened the newspaper is giving Morton’s case wide play, the Times is simply beating the same figurative dead horse that should have long ago been pulverized to glue.
When – oh when – will prosecutors be held accountable? As the newspaper rightly points out, prosecutorial violations are rarely punished by state bars or judges. And criminal sanctions? Fuggedaboutit!
                                                                                                                                                                               So notwithstanding the unheard of efforts of Morton’s lawyers, I would set the chances of any discipline ever being meted out by either the Texas Bar or the judicial conduct disciplinarians as “slim to none.”
                                                                                                                                                                                  I know. Call me cynical. But as famed Los Angeles radio sportscaster Jim Healy used to say about such long odds,“And slim is in intensive care.”
Photo Credit: Horse by DuBoixMorguefile at morguefile.com

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Woman covering her eyes uid 1

“Don’t believe everything you read in the Austin American-Statesman,” Texas Governor and Republican hopeful Rick Perry told Fox News‘ Neil Cavuto as he blasted the Austin American-Statesman at last Thursday’s final GOP candidates debate before Iowa’s January 3rd caucuses. Perry’s slam was in response to Cavuto’s question about Perry’s time as Texas agriculture commissioner and “a loan guarantee program that, as the Austin American-Statesman reported at the time, had so many defaults that the state had to stop guaranteeing bank loans to start-ups in the agribusiness, and eventually bailed out the program with the taxpayer money.”

Judges Gavel

I don’t know about any loan program or whether extra circumspection’s required when reading the Austin American-Statesman. But I do know that the Austin, Texas newspaper has been carrying news stories about something far worse in Texas. And it has nothing to do with Perry.

It’s the injustice visited upon Michael Morton, wrongfully convicted in 1987 of murdering his wife, Christine, and who is scheduled to be officially exonerated today after some 25 years in prison. He was released last October. See Michael Morton case | Austin Legal – Statesman.com and Alberta Phillips’ Op-Ed, Sadly, justice for Michael Morton 25 years too late – Statesman.com.

The news story has also made the national wires and is being carried by all the major news outlets, suggesting that notwithstanding its purportedly credibility-challenged source, heed should be taken.

Despite “Brady,” a recurring problem.

Several years ago, I was so infuriated after reading “the litany of legal outrages” in John Grisham’s nonfiction story of police and prosecutorial abuses attendant the wrongful conviction of Ron Williamson, “The Innocent Man: Murder and Injustice in a Small Town,” that I bought extra copies of Grisham’s book to give away to friends. This was after first having urged them to read it.

For those happily sanguine in their belief in a fair criminal justice system and the presumption of innocence, read Grisham’s book about what happened to Ron Williamson in Ada, Texas.

And according to The Innocence Project, the problem may extend beyond a small Texas town, as “More people have been freed through DNA testing in Texas than in any other state in the country, and these exonerations have revealed deep flaws in the state’s criminal justice system.” See “Innocence Blog: Reducing Wrongful Convictions in Texas.”

Michael Morton.

As though more corroboration was necessary, there’s the case of Michael Morton, the former grocery store clerk who served almost a quarter century’s worth of a life sentence. The truth will yet out but as of now, it appears Morton should have never been convicted had a prominent prosecutor and now county judge, Ken Anderson, and then prosecutor Mike Davis, now a private practice lawyer, and current District Attorney John Bradley shared potentially exculpatory evidence with the defense – – – as required under Brady v. Maryland 373 U. S. 83.

But then this is a recurring problem not only in Texas but elsewhere like the case of Connick v. Thompson, which I blogged about at No proof of “deliberate indifference” as prosecutorial bacon is saved by high court.” As the Connick case bore out, however, to bring prosecutors to account remains tougher than passing a stone.
Nonetheless, grievances have been filed in the Morton case alleging violation of ethics rules by the Texas Coalition on Lawyer Accountability against the three former or current Williamson County prosecutors involved in the Morton case.
The Texas State Bar is being asked to discipline the trial prosecutors. They cite news reports that Anderson and Davis violated their prosecutorial duty by failing to provide Morton’s trial lawyers with exculpatory evidence. And they further contend that Morton’s time in prison was needlessly prolonged by six more years due to Bradley’s opposition to DNA tests requested by Morton’s legal team. Bradley, Anderson and Davis have repeatedly denied taking any improprieties. See Ken Anderson grievance with narrative and exhibits and “Exonerated of Murder, Texan Seeks Inquiry on Prosecutor.”

Judge Anderson has also apologized for “the system’s failure” but not for anything he did. “In my heart, I know there was no misconduct whatsoever,” he said.

Meanwhile, Morton tries to rebuild his life. One report,Court affirms Morton’s innocence,” says that following his release, he spent an hour in the backyard of his parents’ home just watching the squirrels at play.



Photo Credits: “Ouch, Kidney Stones Suck,” by Terry Martin, iPhone Developer, at http://www.tzmartin.com and via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr.

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