By Alan Bean

This New York Times editorial touches on a case that will be familiar to readers of Scott Henson’s excellent Grits for Breakfast blog.  A few days ago, Scott provided this helpful summary of the Michael Morton imbroglio and its singular significance:

Grits recently named the Michael Morton exoneration out of Williamson County the biggest Texas criminal justice story of 2011. Morton spent a quarter-century in prison for allegedly murdering his wife before he was exonerated by DNA and a team of won’t-quit attorneys who fought Williamson County DA John Bradley over testing the evidence for six long years (prevailing only after the Legislature changed the law to remove Bradley’s grounds for objection). It turned out prosecutors 25 years ago had failed to release exculpatory evidence to the defense, and the man who apparently did so, then-elected DA Ken Anderson, is today a sitting Williamson County District Judge. You really can’t make this stuff up!

John Bradley is currently locked in a tight election race that will tell us how the good people of Williamson County (reputedly the most tuff-on-crime county in one of America’s most tuff-on-crime states) feel about the gross injustice perpetrated in their name.

But, as the NYT editorial below correctly observes, this isn’t just a story about a single county or a single state; the Michael Morton case is an egregious example of business as usual in our legal system.  It isn’t that all prosecutors routinely withhold exculpatory evidence from defense counsel (most do not); but if they do, the crime is rarely uncovered, and even when the truth is exposed there is little anyone can, or will, do about it.

In a few weeks I will be telling you how the DEA and the DOJ conspired to convict Ramsey Muniz of a crime he could not possibly have committed.  It all began with an investigative report riddled with baldfaced lies.  A DEA agent reported that her attention was drawn to Muniz by Ramada Inn employees who called to report suspicious behavior.  This report became the foundation for a widely circulated Houston Chronicle story (Muniz once ran for governor, so his legal woes attracted considerable attention) and the basis of the government’s case.  

This story was accepted as bedrock truth until attorney Dick DeGuerin decided to chat with the employees at the Ramada Inn.  They hadn’t been suspicious of Muniz at all, they told the Houston attorney, in fact, the polite businessman had been a model guest.  Furthermore, the Ramada Inn hadn’t contacted the DEA, the DEA contacted the motel. 

When it became clear that a DEA agent had repeatedly perjured herself, the government simply adjusted its story on the fly as the presiding Judge pretended not to notice.

That’s the real problem with prosecutorial misconduct–nobody cares–at least nobody with the power to do anything about it.   If you don’t believe me, read on.     

Editorial

Justice and Prosecutorial Misconduct

Published: December 28, 2011

The judge reviewing the case allowed Mr. Morton’s lawyers, including those from the Innocence Project, which represents prisoners seeking exoneration through DNA evidence, to gather facts about the prosecutor’s conduct. 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.

Mr. Morton’s lawyers have asked that the judge recommend a “court of inquiry” to investigate whether Mr. Anderson violated the law and should be charged in a criminal proceeding. While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction.

Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

Courts should more closely supervise prosecutors by using pretrial conferences where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties.