Why aren’t the same rules followed when a person’s life or liberty is at stake?
Keep in mind that this post was thrown together pretty quickly, and I’m running down rabbit trails already being discussed in one way or another in other Texas blogs in light of a slew of recent exonerations. So I’ll be following up with more research and will of course welcome the knowledge and criticism of others.
One thing that struck me in writing this is that all of the information regarding exonerations and prosecutorial misconduct in specific cases is readily available within minutes. Imagine what a real investigation would turn up…
Since we’re talking about misconduct, let’s start with the Texas Disciplinary Rules of Professional Conduct. While the Rules are intentionally broad and a bit vague, they’re that way to attempt to encompass more acts of misconduct that a very specific set of rules could. The first relevant portion here is Rule 3.09; Special Responsibilities of a Prosecutor, which states in relevant part:
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
Now, the real question appears to be whether or not something negates the guilt of a defendant, and as you can see here, even veteran
prosecutors can have a hard time defining what is and is not evidence that could negate or mitigate the defendant’s guilt. So why leave it up to them? Why not open all files and all evidence? As other prosecutors have stated, taking the Brady question out of their hands only protects them from being accused of wrongdoing and possibly disbarred, so why wouldn’t more of them be in favor of it? My guess is because they have nothing to fear because they’re never disciplined or disbarred in the first place.
And what about Brady? With respect to withholding evidence Brady basically says “don’t do it” and gives certain remedies to the defendant, but what the hell happens to the prosecutor? Nothing. You’d think (and many may argue) that if it happens and is intentional, no district attorney would want someone like that working in their office and would probably fire them, thereby giving ADA’s incentives not to cheat. From sleeping with the judge to hiding evidence, prosecutors have free reign to disclose, or not disclose, whatever they like. If there was any doubt as to whether or not judges protect prosecutors in issues of ethics, the trial judge who was asked to permit discovery related to the affair between Charles Dean Hood’s prosecutor and the judge hearing his case said the discovery could go forward--but set the depositions for a date three days after Hood was to be executed. That irked even the MSM, which reported on the case extensively, no doubt causing that judge to recuse himself and the second judge to permit the depositions to go forward earlier. Hell, here in Harris County we promote those people to District Attorney so their malfeasance can become official policy. And no, Lykos haters, I’m not talking about her—I know she hasn’t tried enough cases for this to be a real threat in any of her cases. Rosenthal was famous for that kind of thing, going so far as to claim that he regularly closed files because he felt Defendant’s aren’t entitled to the information contained in the prosecutor’s files.
Just one other disciplinary rule (8.04) applies to prosecutors alone, and prohibits prosecutors from knowingly violating the Rules in several ways, or engage in dishonest or fraudulent conduct. Now, ostensibly the Rules contain punishment mechanisms for violations. Like I mentioned above civil lawyers are hit with them all the time. The question is, why aren’t prosecutors? They’re state actors with the full power and investigative abilities of a huge government system behind them. From local cops, to sheriffs, to the DPS (including the Rangers where needed), and even their own internal investigators (Harris County has to have over a dozen of them in the DA’s office alone), to crime labs and in-house forensics experts the state can bring an enormous amount of resources to bear on a single defendant. A defendant is lucky to get a court-appointed lawyer and oftentimes doesn’t even get that, much less experts and investigators.
Blogger Scott Henson at Grits for Breakfast has suggested prosecuting for abuse of official capacity under current Texas law. But, that statute generally deals with misuse of property and the statute itself makes reference to “the thing misused.” In fairness, the Grits discussion was about statutory changes that would help prevent Brady violations, and perhaps broadening that statute to encompass acts of omission as well as commission would help. I think the next provision (§39.03) related to Official Oppression is closer to viable, but as a lawyer I can read so many loopholes into that statute that its exceptions will swallow the rule. And all in all, it’s still just a Class A misdemeanor, meaning that a prosecutor can withhold evidence that would prove the actual innocence of a defendant, who has rotted in jail for decades or was even put to death, and the prosecutor is subject only to a misdemeanor conviction. I think we should expect more from our prosecutors than what we currently get, and the only way to get it out of them appears to be with a bigger stick on the punishment side.
Grits also suggested that the statute of limitations should be extended to allow for prosecutions years after the fact. The discovery rule in civil cases (Texas case law is replete with decisions related to the discovery rule so I won’t cite them here, and more than one statute related to limitations has a built-in discovery rule as well. Essentially, if some evidence is inherently not discoverable but is stumbled upon at a later date and the tortious conduct and injury can be objectively verified, the statute of limitations does not begin to run until the discovery is made.), allows for the statute to begin running at the time the injury is discovered. So, perhaps a §1983 claim for infringement of civil rights would be in good shape. Or would it? At least one Texas case, Garcia v. Howard, 904 S.W.2d 941, 944 (Tex. App.--Austin 1991, no writ), held that if a Defendant claims innocence, but is prosecuted and convicted, he cannot use the discovery rule because he knew he was innocent and therefore his innocence was not inherently undiscoverable to him! Are you kidding me? That case even holds that not only is there no relationship requiring disclosure of the potentially exculpatory evidence (a witness who perjured himself), but the relationship between the prosecutors and defendant is the antithesis of a confidential relationship, and therefore no duty disclose certain facts to the defendant exists, thereby rendering fraudulent concealment (and as a result, the discovery rule) inapplicable to any and all claims for wrongful prosecution. At least, I guess, unless you didn’t know you were innocent... To be fair, there is little discussion in Garcia about the knowledge of the police and/or prosecutors regarding the perjured testimony, but nonetheless the decision appears to hold that even if they did, they had no duty. This is clearly contrary to Brady, and it looks like Grits was dead right on this one--in addition to a bigger stick with respect to punishment, current Texas statutes of limitations would most likely have to be extended or have a discovery rule written in so that any punishment could be carried out at all.
And what’s “inherently not discoverable, anyway? That’s the most common argument made in civil cases by people whose conduct is discovered late, that it should have been discovered earlier. I’d say failure to disclose evidence known by a prosecutor, or as in the recent Rachell case, claiming that there was no physical evidence when in fact there was, would qualify. While there appears to be enough blame to spread to every lawyer involved in the Rachell case, it’s just one of many in Harris County and state wide where the allegation of withholding evidence has appeared. Because the Code of Criminal Procedure now allows for discovery in criminal cases just as the rules apply to civil cases (albeit with a few more hoops through which to jump because many discovery requests require the permission of the court), there’s pretty much no excuse for not filing a motion to gain access to all non-privileged file materials, including what should be all physical evidence and expert reports. Any defense lawyer not doing so is probably committing malpractice, even if the prosecutor tells them there’s nothing to request, as may have happened in the Rachell case. The down side of that for a defense lawyer is that it appears that almost everything is inherently discoverable, even if the prosecutor tells you it’s not in the file, unless you can get a full copy of the file and prove that it was withheld even from a discovery request. And even then, because it’s becoming more and more apparent that even if you didn’t actually find out about the misconduct for several years due to a prosecutor’s actions you’re still bound by the original statute of limitations with respect to civil cases.
And no matter what remedies are available to the defendant, we have yet to address what happens to the prosecutor. So, you first have to determine if they’ve made a Brady violation and failed to disclose evidence (which as mentioned above may not even allow you to bring a civil case), and hope that you discovered it within the statute of limitations because as shown above you’re out of luck in filing a civil suit because there is no applicable tolling provision. (There are vague references in some cases to common law tolling provisions applying to §1983 claims but those are usually deal with the incapacity of the defendant at the time his cause of action accrues, not based on a discovery rule.) But again, that has to do with a defendant’s remedy, not a prosecutor’s punishment. Apparently, the criminal case against him would be equally hopeless because it appears that the criminal and civil statutes of limitations are treated equally at common law, and the statutory tolling provisions in the Code of Criminal Procedure simply do not apply.
So I guess to make a long story short, a prosecutor can be sued, but only within the statute period because there is no discovery rule if you’re innocent. This is because you knew you were innocent and it should be no surprise to you. Prosecutors may be prosecuted, at this point for only a misdemeanor, and again only during the original statute period because it appears that there is no applicable tolling statute for his own malfeasance (maybe because it’s known to him?). So in all practical aspects, because the prosecutor’s misconduct is discovered years later, they can almost never be prosecuted even if a DA was inclined to do so. Finally, a prosecutor may also be disciplined by the state bar. Again, would that it was ever done.
So it appears that a prosecutor maintains in all practical reality immunity from prosecution and even discipline. No wonder they can quabble over the definition of words like ‘tends to’ and ‘negates’ because their bosses, who have done the exact same thing, won’t punish them and by the time the omission is discovered all criminal penalties are time barred.
All we in Harris County can hope for is that Lykos follows through on her threat to punish those in her office who withhold exculpatory evidence. I hate to say it, but an internal policy such as the one she’s proposed is probably the only hope the HCDA has to start hitting above the belt.