When will prosecutors be held accountable for misconduct?
In February, Texas Supreme Court Chief Justice Wallace Jefferson affirmed the finding of state District Judge Sid Harle that there was probable cause to believe former Williamson County prosecutor Ken Anderson had violated the criminal laws of Texas by disobeying a court order to disclose evidence pointing to the innocence of Michael Morton, who in 1987 was wrongly convicted of murdering his wife. A court of inquiry will now try Anderson on these charges.
The case against Anderson (who is now a state district judge and denies wrongdoing in the Morton case) made national headlines because, as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren't investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less "harmless" intentional misconduct in cases in which the defendant was guilty.
Texas appears to be no exception to the national pattern. The Innocence Project, the Northern California Innocence Project, Innocence Project of New Orleans and Voices of Innocence joined forces to investigate the problem of prosecutorial misconduct in Texas — no small task, given the lack of public data on the issue. In the end, the groups decided to review all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004 and 2008. This represents just a fraction of all criminal cases because it excludes nearly every case in which there has been a guilty plea or a dismissal and includes only those cases for which there are published opinions.
What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney's office accountable for intentional acts of misconduct by line prosecutors.
No other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct — not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers.
What about internal systems that the district attorney groups claim will prevent misconduct? With a handful of exceptions — primarily offices that have "conviction integrity units" designed to address miscarriages of justice and misconduct — most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts — quality assurance and control protections we routinely require in hospitals, financial institutions and factories.
Similarly, relying on judicial monitoring and reporting of misconduct has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.
http://www.statesman.com/opinion/insight/errant-prosecutors-seldom-held-to-account-2342079.html