As criminal defense lawyers we know all too well that there are prosecutors who daily walk right up to the line of professional misconduct. It is infuriating to witness prosecutors derive pleasure from winning at all cost, forgetting their sworn duty to see, not just that people are convicted, but that justice is done. They have forgotten, or don’t care, that justice is to be afforded to all involved in a criminal case, including the defendants.
In March 2012, Brandi Grissom published a piece in the Texas Tribune about prosecutorial misconduct going unpunished by the State Bar of Texas. The article cited 91 cases, dating back to 2004, in which courts had found some form of misconduct committed by the prosecutors. The Tribune report was based on a study conducted by the Northern California Innocence Project that chronicled prosecutorial misconduct in Texas and other states. The study, which was released on March 29, 2012, found that none of these Texas prosecutors had ever been disciplined.
The following year the Texas Legislature enacted, and former Gov. Rick Perry signed into law, the Michael Morton Act—legislation designed to create a more open discovery process and thereby reduce prosecutorial misconduct associated with evidence of innocence, mitigation, and impeachment. The Morton Act became effective on May 16, 2013.
On November 8, 2013, Ken Anderson, the prosecutor who tampered with evidence that sent Morton to prison for 25 years for a crime he did not commit, entered into a plea bargain that sent him to jail for ten days, forced him to complete 500 hours of community service, and required him to surrender his law license to the Texas Supreme Court. The former Williamson County “prosecutor of the year,” who had built of highly respected “law and order” career, was formally ordered by the Texas Supreme Court November 19, 2013 to surrender his law license and accept disbarment. This was the first time a Texas prosecutor had been sent to jail for withholding evidence and for the misconduct that followed.
The message had been delivered. The historical “hands off” tradition of dealing with prosecutorial misconduct in Texas was coming to an end. This year alone the State Bar has been active in reigning in prosecutors who had engaged in misconduct.
In March, the State Bar filed a formal accusation of prosecutorial misconduct against former Navarro County District Attorney John H. Jackson who not only prosecuted but lobbied for the 2004 execution of Cameron Todd Willingham. The complaint against Jackson accused him of obstruction of justice, making false statements, and concealing evidence favorable to Willingham’s defense. The complaint marked the end to an exhaustive investigation of Jackson by the State Bar.
On June 11, the State Bar found that former Burleson County District Attorney Charles Sebesta had engaged in “professional misconduct” in the case of Anthony Graves who was convicted in 1994 for murder and who spent 18 years in prison (16 of which were spent on death row) before being declared actually innocent by the courts. Sebesta was disbarred by the State Bar.
Houston’s KHOU, Channel 11, reported on June 24 that the State Bar filed a disciplinary petition against two Fort Bend County prosecutors, John Healey and Mark Hanna, accusing the duo of failing to notify defendants that the state’s expert had fabricated test results and had been fired. The prosecutors had been notified that the evidence given by the forensic expert was unreliable, and that the evidence itself had been destroyed, precluding it from retesting, yet they failed to disclose the fatal flaw in the state’s case to defense counsel. Exasperating the misconduct, the DA’s Office remained silent while defendants to plead guilty to criminal charges that were built, in part, on the questionable test results. If the two prosecutors are disciplined by the court, they could face a range of sanctions, including the ultimate sanction of disbarment.
The fact that the State Bar would take the extraordinary, and exceedingly rare, action of filing a disciplinary petition against a sitting district attorney is persuasive evidence that the Bar’s tolerance of prosecutorial misconduct is seriously eroding, and will perhaps become an ugly relic of the past.
But not everyone is prepared to accept a sea change. Kathryn Kase, the attorney for Anthony Graves, said that despite the Michael Morton Act, prosecutorial misconduct is still prevalent in Texas.
“Even with the Michael Morton Act, I hear every week about prosecutors who are withholding favorable information and these two cases should communicate that the State Bar of Texas is not going to turn a blind eye to a prosecutor’s violation of ethical duties,” Kase was quoted as saying by the Texas Tribune.
We respect Ms. Kase’s caution, and agree with her assessment, but we are encouraged the State Bar has sent some particularly strong messages recently to prosecutors that free ride is over. We will wait and see what the impact of these messages will ultimately be.
A prosecutor has a special duty to see that justice is done, not just pile up convictions for the office. When a prosecutor violates this duty and the immense trust given to them to by the public to see that justice is done, they should be done, and never allowed to prosecute criminal cases for the remainder of their career.