There are nearly 7 million people under criminal justice supervision in the United States—2.2 million in prison or jail and another 4.6 million under probation or parole supervision in the general community. Celebrated crime novelist and criminal justice reform advocate John Grisham estimates there are anywhere from 46,000 to 230,000 innocent people locked away in the nation’s penal system.


This past April the National Registry of Exonerations (Registry) reported that there have been 2,372 exonerations of wrongfully convicted people in the U.S. from 1989 to the end of 2018. 151 of those exonerations were recorded in 2018 alone. The Registry found that official misconduct, such as prosecutorial misconduct, was responsible for 107 of those wrongful convictions.


33 Years in Prison for Wrongful Conviction


Prosecutorial misconduct has been in the news recently in three prominent wrongful conviction cases. First, there was 62-year-old Keith Bush, a New York man who spent 33 years in prison for a murder he did not commit. His wrongful conviction was obtained after a prosecutor illegally suppressed evidence and a racially biased detective coerced a confession from Bush.


28 Years in Prison for Crime He Did Not Commit


Then there was 48-year-old Chester Hollman III who served nearly 28 years in the Pennsylvania prison system for a murder he did not commit. Prosecutors and the police withheld “credible evidence” that linked three other people to the murder.


In a prepared statement, Hollman’s attorney Alan Taber said:


“[Chester] has had the most precious year of his life stolen from him by an indifferent system that too often refuses to re-examine doubtful cases or credit evidence of obvious innocence.”


30 Years in Prison Before Exonerated


Finally, there was 49-year-old Corey Atchison, an Oklahoma inmate who spent nearly 30 years in prison for a murder he did not commit before being exonerated. The prosecutor in the case suppressed witnesses who gave descriptions of the killer that did not fit Atchison. As attorney Taber stressed in his statement in the Hollman case, the current Tulsa County district attorney is defending the prosecutor that wrongfully convicted Atchison:


“The people who repeatedly elected Tim Harris as their District Attorney did so because he embodied integrity,” Tulsa District Attorney Steve Kunzweiler said in a statement obtained by local NBC affiliate KHRH. “I came to work for Mr. Harris in 2002 because of his honesty and integrity. Now, 25 years after the fact, comes a single spurious claim which runs completely counter to the stellar reputation Mr. Harris developed over his lifetime.”


Last year Pew Trusts reported that since 2007, some 35 states have initiated criminal justice reforms—such as sentencing and prison reform; reduced incarceration rates; prison population reduction; improvements to public safety; and investments in community mental health programs. While these reforms have advanced improvements in the nation’s criminal justice system, only two of the states chose to address one of the most insidious causes of wrongful convictions: prosecutorial misconduct.


Two States Pass Reforms Targeting Rogue Prosecutors


This past April ProPublica reported that the State of New York enacted legislation that “requires prosecutors to share evidence against criminal defendants within 15 days of arraignment, a major shift for a state that previously had no such deadlines and maintained a notably restrictive approach toward disclosure.”


Janet Sabel, CEO of Legal Aid, said the “monumental” reform package “will end the gamesmanship and power dynamics that have favored prosecutors for decades, resulting in thousands of coerced pleas and wrongful convictions.”


The taxpayers of New York have been shelling out millions of dollars in damages in recent years to scores of criminal defendants wrongfully convicted because of prosecutorial misconduct, such as concealing witnesses, suborning perjury, withholding evidence, and coercing witnesses.


Suggested Reforms to Address Rampant Prosecutorial Misconduct


In an April 2019 opinion piece, New Orleans criminal defense attorney Mike Fawer wrote that “misconduct by prosecutors is rampant” across the nation and went on to explain how and why that is so. The former prosecutor offered four suggested reforms:


  • By statute, eliminate absolute prosecutorial immunity and instead cloak the prosecutor in qualified immunity for all of his actions. The existing hurdles a plaintiff must overcome to secure a civil money judgement are already sufficiently limiting to prevent the tsunami of cases the [Supreme Court has]
  • Make the office of the local district attorney or U.S. attorney responsible for any civil monetary award. Each has a budgetary allotment which would be directly impacted by the monetary judgement. (Under existing federal criminal law, a prosecution brought in “bad faith” may subject the local Office of the U.S. Attorney, and it alone, to paying any monetary judgement for attorney fees and expenses awarded as a result of such bad faith prosecution.) I would even go so far as to consider holding the individual district attorney or U.S. attorney at the time of the wrongdoing individually responsible. (This would surely promote more vigorous internal review of ethical breaches.)
  • Compel the local [county] and federal prosecution offices to implement an internal disciplinary mechanism for review of all ethical breaches by prosecutors reflected in all court opinions. Further, mandate that any and all such breaches be referred to the bar association’s disciplinary counsel.
  • Obligate the local and federal prosecuting offices to formally advise the media and the public in a timely fashion of such reported ethical breaches, their referral to disciplinary counsel and what, if any, internal sanctions have been imposed.


Texas Prosecutors Deny Problem of Bad Prosecutors


While Fawer paints an accurate picture of prosecutorial misconduct as it exists today, and as it has existed for decades, Shannon Edmonds and Stacey Soule, both of whom are members of the powerful Texas District and County Attorneys Association, told the Texas House Jurisprudence Committee last May that prosecutorial misconduct is virtually non-existent in this state.


Writing in the June 15, 2018 edition of the Intercept, Jordan Smith described their committee appearance this way:


“The pair was sitting before the House Criminal Jurisprudence Committee for a hearing regarding prosecutorial misconduct and ineffective assistance of defense counsel. Soule was there with what sounded like good news. She told the committee that while cases involving prosecutorial misconduct have ‘dominated discussions about the integrity of our criminal justice system in recent years,’ she was ‘pleased to report that those cases have become less prevalent.’ She’d done the research and found that over the last 12 months, the Court of Criminal Appeals had only granted relief four times based on a claim that prosecutors had committed misconduct by withholding evidence.


“When it was his turn to speak, Edmonds applauded Soule’s findings. ‘Having information like this is great,’ he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often ‘more heat than light.’ A lot of people ‘bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.’ If you search online for ‘prosecutorial misconduct’ he said, you’ll find a lot of complaints and’ supposed data that is rarely independently scrutinized’ the way Soule had done.”


Texas Leads Nation in Exonerations


What these two pro-prosecution stalwarts did not tell the committee is that Texas remains one of the nation’s leading states in exonerations. The Registry found that Texas tied New York for second place with 16 exonerations in 2018 and the Texas Tribune reported the state had 23 exonerations in 2017 and 58 in 2016, the most in the nation those two years. Many of these wrongful convictions involved prosecutorial misconduct.


Like New York, the State of Texas in 2013 enacted the Michael Morton Act to address rampant prosecutorial misconduct in the state. But as we pointed in a May 26, 2019 post, the Texas Supreme Court recently issued a ruling that blessed attempts to cover-up prosecutorial misconduct in this state.


Edmonds and Soule may paint a proverbial “rosy picture” to the Texas Legislature that prosecutorial misconduct is virtually non-existent in the Lone Star state, but the truth is that prosecutorial misconduct in Texas remains rampant, just as it is throughout the country.  We would suggest the Texas legislature seriously examine and make reforms similar to those suggested by Fawer, including criminalizing intentional prosecutorial misconduct. Intentional misconduct that causes a person to be convicted of a crime they did not commit creates a lifelong hardship for the wrongfully convicted and should be treated as the serious crime it is.