The Austin Chronicle has an article about prosecutorial immunity in Texas. Not immunity from civil judgment, which is mandated by the Supreme Court for all prosecutors, but immunity from any consequences at all, either criminal or administrative, for their crimes.
Although courts have confirmed that prosecutorial misconduct occurred in 91 Texas criminal cases between 2004 and 2008, not a single prosecutor among those has ever been disciplined for their misbehavior, according to new data compiled by the Innocence Project. (Allegations of prosecutor misconduct were raised in another 124 cases, but those issues were not ruled on by any court.)
This is likely just the tip of the iceberg, said Emily West, IP research director, during a public dialogue on prosecutorial oversight last week at the University of Texas School of Law. Indeed, because 98% of Texas criminal cases are resolved through plea bargain, it is unlikely that we’ll ever know the true extent of the problem – which includes withholding exculpatory or other evidence possibly favorable to a defendant. Of the 91 cases in which the courts agreed there was misconduct, 36 involved “improper” arguments during trial, 35 involved improper questioning of a witness, and eight involved a failure to disclose favorable materials, known as a Brady violation. That’s exactly what Michael Morton says happened to him.
Exonerated last year, Morton spent nearly 25 years in prison for the bludgeoning death of his wife before DNA evidence linked another man to the crime instead. Morton’s conviction could have been avoided, he argues, had Williamson County prosecutors – chief among them former District Attorney Ken Anderson, who is now a district judge – had turned over evidence they had back in 1986 that suggested strongly that Morton was innocent of the crime. Anderson is now facing a rare “court of inquiry” (slated to begin Sept. 11), in which a court will determine if his actions (or inactions) violated criminal statutes. (If so, perhaps the IP will have to add a single hash mark to the “disciplined prosecutor” column.)
One of the arguments offered by advocates of civil immunity for prosecutors is that there are other ways to hold them accountable. They can be charged criminally, they can be sanctioned by the court, they can be punished administratively by the bar association. But those things very rarely happen — almost never, in fact. Criminal charges must come from another prosecutor, which they are very, very unlikely to do. The most common punishment comes from judges, but even then it’s mild.
I think the rule should be a very simple and very bright line. If a prosecutor withholds or manufactures evidence in a case against a defendant, they have to serve out the sentence of the person they unjustly framed. That would be a serious deterrent. But they are ruining lives with their actions and that should be treated very seriously.