The State of Nevada stands poised to become the 34th state to pass legislation providing for compensation to those wrongfully convicted of crimes. Nevada’s epiphany came after Fred Steese was exonerated in 2012 after spending more than two decades in the state’s prison system for a murder he did not commit. The new compensation bill has been pushed by one of the prosecutor’s involved in the Steese case and his impassioned daughter outraged at Nevada’s shabby history of dealing with individuals wrongfully convicted, most of whom spent years, even decades, behind bars.
Texas had its own wrongful conviction epiphany in 2013 following the exoneration of Michael Morton in 2011 after he spent twenty-five years in the state’s prison system for a murder he did not commit. His exoneration led to the “Michael Morton Act” which requires prosecutors to open their files to criminal defense attorneys and to maintain a record of all information provided to them. Kathryn Kase, Executive Director of the Texas Defender Service, hailed the Act at the time:
“This is a great day for fairness in Texas. The Michael Morton Act will reduce wrongful convictions; it is something we can all be very proud of.”
Prosecutorial Misconduct Destroys Lives, Prevents Justice, Costs Taxpayers
Three years after the enactment of the Michael Morton Act the Texas Tribune reported that Texas had paid out $93.6 million over the previous 25 years to 101 individuals who had been wrongfully convicted by state prosecutors, many of whom had been sent to prison because of prosecutorial misconduct.
The term “prosecutorial misconduct” is not listed in the eight definitions of attorney “Professional Misconduct” spelled out in Rule 1.06(CC) of the Texas Rules of Disciplinary Procedure (Effective June 1, 2018). It is generally accepted, however, that the following specific acts by a prosecutor constitute what is now universally referred to as “prosecutorial misconduct:”
- Courtroom misconduct including but not limited to making improper remarks or improperly introducing evidence designed to prejudice the jury; violating rules regarding selection of the jury; or making improper closing arguments.
- Hiding, destroying or tampering with evidence, case files or other court records.
- Failing to disclose evidence that might tend to exonerate the defendant;
- Failing to disclose favorable relative to a defendant’s guilt or mitigating evidence relative to their punishment under the Brady Rule; and/or failure to disclose impeachment evidence in violation of the Giglio Rule.
- Threatening, badgering or tampering with witnesses;
- Presenting false or misleading evidence.
- Selective or vindictive prosecution.
- Denial of speedy trial rights.
- Use of unreliable and untruthful witnesses and snitches.
After seeing its justice system face the embarrassment of 275 exonerations since 1989 and having paid out millions of dollars in wrongful conviction lawsuit settlements, the New York Legislature last year passed, and Gov. Andrew Cuomo signed into law, a bill establishing the nation’s first prosecutorial oversight commission called the State Commission of Prosecutorial Conduct. The new law empowers the 11-member commission to investigate complaint of prosecutorial misconduct and to make their findings public. New York (275), which only trails Texas (360) in the number of total exonerations since 1989, discovered that one-third of its exonerations involved prosecutorial misconduct.
Prosecutors Unhappy with Oversight
District attorneys across New York were not pleased about the creation of the oversight commission. They challenged the law creating the commission saying it violated the “separation of powers” by giving the commission too much power over elected district attorneys. Gov. Cuomo and the legislature agreed the law needed tweaking and did so last month. The district attorneys, however, were still not satisfied with the changes and vowed to continue their court challenge to the oversight commission in its entirety.
Brady violations, and the inherent prosecutorial misconduct associated with them, continue to plague the nation’s criminal justice system—the Michael Morton Act, compensation bills like the one recently passed in Nevada, and New York’s oversight commission notwithstanding. The disclosure responsibilities under the Morton Act, the compensation payouts in 33 states, and the accountability of oversight commissions are not enough.
Brady Violation Disclosure Letter
Writing in January 2019 Vanderbilt Law Review (Vo. 72:1:297) , Jason Krong, Associate Professor Law at the Arizona University at the James E. Rogers College of Law, suggests a Brady Violation Disclosure Letter as yet another option for dealing with Brady violations.
“… The letter,” writes Professor Krong, “is a concise, clear statement memorializing the prosecutorial misconduct and its effect on the case. To be most effective, the letter should be sent to participants in the adjudicatory process—the jurors, witnesses, judge, prosecutor, and defense attorney from the original trial; the victim of the underlying crime; and relevant criminal justice organizations, including victims’ rights organizations, the public defender’s office, the local prosecutor’s office, and the law enforcement agency that investigated the case. Publicly disclosing prosecutorial misconduct in this manner promotes Brady compliance, validates the interests of the range of people harmed by Brady misconduct, and increases transparency. It is also a flexible tool that can be implemented immediately without new laws, rules, or regulations.”
We agree with Professor Krong.
The shame of a scarlet letter would be as effective as the public disclosures of an oversight commission like the one in New York—probably more so because the Brady Violation Disclosure Letter would be sent to all the participants in the trial process.
Targeted professional shaming is as effective, if not more so, than public shaming.