In dismissing an ethics complaint against Fort Bend, County District Attorney John Healy, Denton County District Judge Jonathan Bailey ruled that the Texas Rules of Professional Conduct Rule 3.09(d) placing an ethical responsibility on prosecutors to disclose favorable material to a defendant does not apply in the post-conviction setting.


Put simply, once a criminal conviction has been obtained a conviction, a Texas prosecutor owes no duty, either to the defendant or the court, to either disclose or act upon newly-discovered evidence that calls into question the validity of the conviction or the defendant’s actual innocence.


Finality More Important than Justice


The “doctrine of finality” is the holy grail of prosecutors. Actual innocence takes a back seat to the doctrine.


This tragic reality was given absolute credence in 1993 by the Supreme Court in Herrera v. Collins which held that when a criminal defendant is given a procedurally correct trial, a free-standing claim of actual innocence is not a constitutionally recognized basis for the issuance of a federal writ of habeas corpus. In other words, if an innocent defendant receives what the courts determine to be a “fair trial,” he must remain in prison absent executive clemency.


The U.S. Supreme Court was once thought of as the “court of last resort”—the place where justice could be obtained when all other judicial venues were closed. It has been written that there is a “’searing injustice and consequential social injury …when the law turns upon itself and convicts an innocent person.’”


Supreme Court Leaves Innocent in Prison


Led by Chief Justice John Roberts, this is exactly what the conservative wing of the Supreme Court did in 2009 with its horrendous decision in District Attorney for the Third Judicial District v. Osborne that held a state prisoner does not have a due process right to obtain evidence from the state that could establish his actual innocence.


In effect, the doctrine of finality torches the presumption of innocence and replaces it with an un-rebuttable assumption of guilt. This assertion was underscored by Chief Justice Roberts, writing for the conservative wing in Osborne, who said that “… science along cannot prove a prisoner innocent,” effectively saying that “actual innocence” is not a concern of the courts but rather is a problem for the legislative and executive branches of government.


Pardons Hard to Come By


The problem with relying on pardons or executive clemency as the gateway to justice is that in order to secure relief from either executive agency, there must normally be an admission of guilt, an “acceptance of responsibility.” These agencies, whose members are traditionally appointed by the governor and who are tasked with the responsibility of sending only recommendations for “rehabilitated” inmates to the governor for approval, are not in the business of second-guessing the courts. They are strict adherents to that absolute assumption of guilt rooted in the post-conviction judicial process. As law professor Daniel S. Medwed said in a 2005 Arizona Law Review article (“Up the River Without a Procedure”),”the executive clemency power—an oft-cited, purported panacea for the ills of wrongful convictions—is seldom exercised by government officials.”


Prosecutors in Best Position to Cure Wrongs


Thus, the best person in a position to investigate and rectify a wrongful conviction when there is newly-discovered, credible, material evidence of actual innocence is the prosecutor.


The law in Texas requires that a prisoner “bears the burden of showing that the newly-discovered evidence unquestionably establishes his or her innocence.” That is a high bar to scale, even when the prisoner is represented by counsel. That’s why the American Bar Association has said that prosecutors, not the courts, are in the best position to avoid the procedural obstacles to actual innocence posed by the Osborne decision and the 1996 Anti-Terrorism and Effective Death Penalty Act—an act that severely limits federal habeas corpus relief to state prisoners, even those who are actually innocent.


American Bar Association Rules Require Action by Prosecutors


“To ensure attention is given to innocence issues by prosecutors,” ABA said, “the Criminal Justice Section initiated policy that resulted in a 2008 amendment to the ABA Model Rules of Professional Responsibility that guides prosecutorial responses concerning postconviction innocence requests. The new provisions give voice to the admonition in Imble v. Pachtman, 424 U.S. 409, 427 n.25 (1976), that prosecutors are ‘bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.’ Rule 3.8(g) now provides that in cases where there is ‘a reasonable probability that a convicted defendant did not commit the offense,’ prosecutors should (1) promptly disclose that evidence to an appropriate court or authority and, unless a court authorizes delay, promptly disclose that evidence to the defendant; and (2) undertake such further inquiry or investigation as may be necessary to determine whether the defendant was convicted of an offense that the defendant did not commit. Rule 3.8(h) applies when a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted of an offense that the defendant did not commit. In that case, the prosecutor shall seek to remedy the conviction. These rules may be key in cases where testing has taken place or other evidence establishing innocence is present, such as credible recantations and/or third-party confessions, even though Osborne has rejected any role for Brady in postconviction litigation. However, they leave open how prosecutors should react before testing. In this regard, Comment 1 added to 3.8(g) lends support for proactive action even in non-DNA cases by explicitly referencing the prosecutor’s role as a minister of justice that carries obligations to see ‘that special precautions are taken to prevent and to rectify the conviction of innocent persons.’ At a minimum, this comment cautions against objection to testing requests without good cause.”


Ft Bend County Took the Low Road


Thus, in post-conviction cases in which there is credible evidence of actual innocence, a prosecutor can be a “minister of justice” or a dictator of finality. In the Jacob Estrada case, DA Healy chose to be the latter.


Justice requires a different course of action, one where prosecutors have the duty to rectify wrongful convictions.  After all, they did play a significant role in the matter, from the initial charging decisions to conviction and punishment.


In the conclusion of their exhaustive article, “Prosecutorial Discretion and Post-Conviction Evidence of Innocence,” Bruce A. Green and Ellen Yaroshefsy suggested the optimum approach prosecutors should take in these kinds of cases:


“We have chosen not anticipate and address objections in the abstract, but instead propose that prosecutors’ offices should proceed incrementally by establishing post-conviction review mechanisms, insuring independence from the prosecutors who handled the case, as did the Dallas district attorney’s office, and setting priorities. For example, prosecutors might begin by reviewing new evidence in death penalty cases and cases where defendants have been or will be in prison for lengthy periods of time. Experience will then show whether the demand of reviewing convictions is burdensome or manageable, and how the process can be improved and made more efficient. Experience will also provide more information about how often the ordinary investigation, trial and guilt-plea processes result in potentially false convictions, and why that occurs. Ultimately, experience will tell whether less need be done, or more should be done, to promote the reliability of the criminal justice process. If a prosecutor’s responsibility as ‘minister of justice’ truly includes a responsibility to take ‘special precautions … and to prevent and rectify the conviction of innocent persons,’ as the ABA—and we—believe it does, then initial efforts such as these should be taken by all prosecutors’ offices, not just an innovative few.”


Resistance to Claims of Wrongful Conviction


Since 1989, there have been 1,679 exonerations in this country, according to the National Registry of Exonerations. Last year alone, there were 125 exonerations. Many of those exonerations were actively resisted with litigation in opposition to the process by prosecutors who were involved in the wrongful convictions. Some prosecutors, like Caddo Parish District Attorney Dale Cox, believe that wrongful convictions are just a collateral casualty in the “pursuit of justice” and that they are not in the “compassion business” so why worry about it.


Pursuit of Justice Requires Seeking Truth


Compassion, we believe, is often an integral component in the pursuit of justice. Punishing the wrongdoer is not the sole purpose of the pursuit of justice; seeking the truth is. Texas has more than its share of prosecutors like Dale Cox—the facts leading up to the Michael Morton Act is reminds us of clear evidence of this assertion.


Prosecutors, we believe, have a moral, ethical and legal duty to rectify wrongful convictions. Anything less is a travesty of justice.