Convict At Any Cost” Mindset of Criminal Prosecutors Has Become Way of Doing Business

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


We believe in balanced and fair reporting. Earlier this year we posted a piece about reports of how prosecutorial misconduct either goes unpunished, or is ignored nationally, and especially in Texas. This inaction applies to disciplinary, civil and criminal responses to prosecutorial misconduct, even when prove beyond any doubt.  Our post was based on a 2009 studies by the Innocence Project of Northern California, the New York-based Innocence Project, and the Texas Tribune. The Innocence Project of Northern California study, and a follow up 2012 study by the Tribune, apparently pricked the bubble of the otherwise unresponsive Texas District and County Attorneys Association (“TDCAA”). Last month the district attorneys group released to the media a report, entitled “Setting the Record Straight on prosecutorial Misconduct,” that was critical of the two studies and which drew some questionable findings about what it called the “overstated” issue of prosecutorial misconduct in this state. In the name of balance, we will present the report’s findings to you—a summary of which includes:


  • Wrongful convictions based on questionable prosecutor conduct are exceedingly rare (six of more than 4.3 million cases from 2004-2008);
  • The criminal justice system has made many advances in both science and procedure that have decreased the chances of wrongful convictions since the 1980s; and
  • Any wrongful conviction or true prosecutorial misconduct is unacceptable, and there are a number of actions the subcommittee recommends and Texas prosecutors to address the factors that contribute to wrongful convictions.

The TDCAA study spanned eight months this year, beginning in January. The study was conducted by “subcommittee” of “elected prosecutors” from “diverse jurisdictions” and who were charged with the responsibility to examine three questions:

  • What is the prevalence of “prosecutorial misconduct” around the state?
  • Have policies and practices in the 1980s and 1990s that led to exonerations in the 2000s improved? And
  • What measures can prosecutors and their member association, TDCAA, take to help eradicate wrongful convictions?


The decision by the TDCAA to respond to criticism leveled against Texas prosecutors was actually reached in December 2011, just weeks after Michael Morton was declared “actually innocent” by the Texas Court of Criminal Appeals. Ken Anderson, current Williamson County judge, was the prosecutor who suppressed evidence of innocence that sent Morton to prison for 25 years for the 1986 murder of his wife. The judge now faces a court of inquiry. And John Bradley, the prosecutor who purposely delayed the finding of innocence in the Morton case, was defeated earlier this year in his re-election bid in which the Morton case was the driving issue. The Morton case garnered national and international embarrassment for the Texas criminal justice system, especially for its prosecutors who have a sordid history of sending innocent people to prison—the “Setting the Record Straight on Prosecutorial Misconduct” TDCAA report notwithstanding.


The Tribune reported last July that 25 percent of the 86 criminal convictions overturned in this state between 1989 and 2011 involved some form of prosecutorial mistake or misconduct. The Tribune report was based on the National Registry of Exonerations. The New York-based Innocence Project study, reported last April in the Austin Chronicle, examined 91 cases between 2004 and 2008 in which prosecutorial misconduct was involved. Not one of the prosecutors was punished, or held accountable in any way, for their misconduct. The TDCAA responded to this study this way:


“The report by the Innocence Project claiming 91 cases of prosecutorial misconduct contains serious flaws that result in a vast overstatement of the problem. The overwhelming majority of exonerations have resulted from misidentification or reliance on faulty science, not prosecutorial misconduct, as documented in previous research by the national Innocence Project. A major factor in the misleading claim of widespread prosecutorial misconduct is the refusal of the Innocence Project to offer a definition of the term. This is a fundamental flaw for a study that purports to identify instances of such misconduct. In addition to this flaw, a close reading of the Innocence Project study revealed other fundamental research errors, such as failing to follow up on subsequent case history that cleared prosecutors of wrongdoing. These and other shortcuts taken in compilation of the data cast significant doubt on the usefulness of the Innocence Project’s research.”


You have to give these guys credit for unmitigated audacity. Misrepresentation, borne out of courtroom habit, hallmarks the Texas prosecutorial mentality. The TDCAA charge that the Innocence Project did not offer a definition of prosecutorial misconduct is, to say the least, disingenuous. The U.S. Supreme Court has defined the term in a legion of cases. Everyone knows that if looks like a duck, quacks like a duck, then it is a duck.


As for the leading causes of exonerations being misidentification and flawed science, that’s a fact (over 80% of the DNA exonerations in Texas were the result of eyewitness misidentification). But those issues were not the primary reason why the 91 cases cited by the Innocence Project were reversed. They were reversed because of deliberate prosecutorial error or reckless misconduct. More to the point, in many of the nation’s DNA exonerations based on misidentification/flawed science, prosecutors in those cases knew that the identification procedures employed by law enforcement were unlawfully suggestive, and in some flawed forensic science cases they intentionally introduced what they knew before trial was flawed “junk science” and/or manufactured crime lab evidence. That’s prosecutorial misconduct, fellas—just so you will have the term clearly defined for you.


After saying only a “small number of [the 91] cases” involved “true prosecutorial misconduct,” the TDCAA noted that there are “multiple mechanisms … to regulate misconduct. They include State Bar discipline, criminal investigation and prosecution, removal from office, civil lawsuits, courts of inquiry, contempt of court, the electoral process, employment transfer, and court-ordered mistrials, reversals, and acquittals.”


First, let us deal with the TDCAA suggestion that there is a difference between “prosecutorial misconduct” and “true prosecutorial misconduct.” The TDCAA study implies that some “prosecutorial misconduct” is not as bad as “true prosecutorial misconduct.” We assume the group means that dirt is not as bad as mud. Or, as some male Republican lawmakers believe, some rape is not as bad as “legitimate” rape. Alright, now that we got that straight, we can move on other conclusions in the TDCAA study.


With respect to those “mechanisms” that can “regulate” prosecutorial misconduct—not punish or prevent such misconduct but “regulate” them—we refer back to our post last December about the 2009 report by Innocence Project of Northern California. The report, titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” examined more than 4,000 state and federal appellate rulings in criminal cases in California between 1997 and 2009 which involved alleged prosecutorial misconduct. In 707 of the cases, the courts explicitly found prosecutorial misconduct while in approximately 3000 cases no prosecutorial misconduct was found; and in another 282 cases the courts did not decide whether the prosecutors actually engaged in misconduct, finding the trials they were involved in were fair. In only 159 of the 707 cases did the courts find actual harm, resulting in a new trial, a new sentencing hearing, a mistrial or certain evidence being barred from use at trial. In the remaining 548 cases the courts upheld the convictions, finding the misconduct did not deprive the defendants of a fair trial.


This prosecutorial misconduct study clearly showed there is little, if any, professional accountability attached to rogue prosecutors. The study disturbingly showed “that those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.


“Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.


“Further, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67 prosecutors—11.2 percent—committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five.”


We strongly suspect these general conclusions apply proportionally to the remaining 49 states, especially in Texas.

“Prosecutorial misconduct is an important issue for us as a society,” the study continued, “regardless of the guilt or innocence of the criminal defendants involved in the individual cases. Prosecutorial misconduct fundamentally perverts the course of justice and costs taxpayers millions of dollars in protracted litigation. It undermines our trust in the reliability of the justice system and subverts the notion that we are a fair society.


“At its worst, the guilty go free and the innocent are convicted. An especially stark example is the death penalty prosecution of Mark Sodersten, a man who spent 22 years behind bars convicted of a murder that the appellate court said he most probably did not commit.


“In 2007, a California Court of Appeal found that the deputy district attorney who prosecuted Sodersten, Phillip Crane, has improperly withheld from the defense audiotapes of his interview with a key witness. After reviewing the tapes, the justices found they contained dramatic evidence pointing to Sodersten’s innocence. Based on this finding, the court vacated his conviction, emphasizing: ‘This case raises the one issue that is the most feared aspect of our system—that an innocent man might be convicted.’


“For Sodersten, the ruling in his case came too late: he had died in prison six months earlier.”


In Texas, likewise, we see the real faces of this national disgrace in those like Michael Morton, Timothy Cole and a list of less celebrated individuals who have been cleared of terrible crimes after they were wrongfully convicted and sent to prison for decades, some dying while incarcerated.  Most, if not all, of these cases involved either reckless or intentional misconduct on the part of a law enforcement officer or prosecutor.


Thus, based on this Innocence Project study, we can rule out the following mechanisms to “regulate” what we feel is the insidious practice of prosecutorial misconduct in this state: State Bar discipline, criminal investigation and prosecution, removal from office, employment transfer, contempt of court and court-ordered mistrials, reversals, and acquittals. That leaves us with civil laws, courts of inquiry, and the electoral process. Since prosecutors enjoy absolute immunity granted to them by the U.S. Supreme Court, they do not face any kind of civil liability. And with respect to courts of inquiry, Ken Anderson is the only prosecutor in this state to ever face such an inquiry. Finally, with regard to the electoral process: while John Bradley was defeated in his re-election bid primarily because of his role in the Morton case, that is such a rare occurrence in Texas that it cannot be considered a serious “regulatory” mechanism.


After distinguishing “true prosecutorial misconduct” from “prosecutorial misconduct,” the TDCAA listed the following ten “findings” in the cases examined by its study examined and some of the “recurring issues” found in those cases:


  • Finding 1: Claims of widespread prosecutorial misconduct are vastly overstated.
  • Finding 2: In the small number of cases involving actual misconduct by prosecutors, the central issue is often inadequate disclosure of exculpatory or impeaching information (called Brady information).
  • Finding 3: Some Brady violations are committed by law enforcement officers, not prosecutors.
  • Finding 4: Law schools typically teach Brady as part of their core ethics and criminal curricula.
  • Finding 5: Cognitive bias can play a negative role in prosecutorial decision-making.
  • Finding 6: Public information available from the State Bar is inadequate to assess the effectiveness of the State Bar’s discipline of prosecutors.
  • Finding 7: Prosecutorial immunity is necessary to ensure independent and effective prosecution in our adversarial system.
  • Finding 8: Misidentification by eyewitnesses is the leading cause of wrongful convictions.
  • Finding 9: Accurate forensic science is vital to ensuring confidence in criminal convictions.
  • Finding 10: The professionalism of Texas prosecutors has improved in the last 30 years due to increased funding and cooperation with other allied entities, but high caseloads and other demands threaten that progress
  • Essentially, the TDCAA says that “true prosecutorial misconduct” is excusable for the following reasons: poor law schools, bad cops, inadequate State Bar procedures, misidentification (although that issue is totally unrelated to misconduct), flawed science, high caseloads, unnamed “other demands,” and cognitive bias (whatever that is). Let us just say this, and we want to be quite clear about it: there are no excuses for prosecutorial misconduct. If a “prosecutor” does not know the historical mandate and constitutional implications of Brady v. Maryland, he or she has no business being a prosecutor representing the State of Texas, or any other state.

Speaking for the Northern California Innocence Project, project director Cookie Ridolfi said its study distinguished between different kinds of prosecutorial errors and misconduct. “The reason why this [misconduct] is even happening is because prosecutors have not been unfairly criticized,” Ridolfi told the media in response to the TDCAA study. “In fact, their conduct has been typically ignored until now. I don’t see them as victims in this.”


Tarrant County District Attorney Joe Shannon, who has a reputation for weeding out prosecutorial misconduct, had this to say: “Every so often, it does pop up and rear its ugly head. We as prosecutors have to deal with it, and so do courts, and so does the public.”


While we respect DA Shannon for his efforts to prevent prosecutorial misconduct, we know the “ugly head” of this problem pops up more frequently than Shannon would have us believe. It is a recurring problem, in varying degrees, in a significant number of criminal cases, especially those cases that go to trial. It is not our intent to malign the prosecutorial profession, but to educate the public about what we feel is widespread, in one form or another, throughout the criminal justice


profession. We strongly disagree that the prosecution/Brady process has improved in this state over the past 30 years as suggested by the TDCAA study. As a matter of fact, we believe that prosecutorial misconduct has not only increased over the past 30 years but has entrenched itself in the “convict at any cost” mindset of criminal prosecutors. It has become, in too many instances, a way of doing business.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization