Friday, January 2, 2009

Prosecutorial Misconduct

Ever hear of a prosecutor being sanctioned for misconduct? Disbarred or reprimanded for withholding evidence? Me either. I’ve heard about it loads for civil attorneys though. I see sanctions granted against attorneys on an almost daily basis in the civil courthouse over silly discovery disputes, including death penalty sanctions in a case for failure to respond properly to discovery or other shenanigans during the course of litigation. The phrase most often thrown around at these hearings are “we’re not supposed to have trial by ambush or Rambo lawyers anymore”, meaning that everyone is suppose to have full access to the evidence so they can fully and fairly evaluate their cases and either settle or be ready for trial. This applies to the largest multi-million dollar breach of contract case, or the silliest, smallest, B.S. car wreck case.

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.

29 comments:

Anonymous said...

Or do like the LADA does, and create an office of Brady Management. Complete copy of the file is turned over, and all names/events entered into a ginormous database for when those same names arise again in another criminal case.

That and put a smoking lounge in the DA's office. That's something they've needed for awhile.

Anonymous said...

How about we put you in charge of it, Rage? How about you solve all the problems of the DA's office and make those facist ADA's tow the line? Since you know so much.

What kind of law do you practice anyway? They don't seem to have much Brady issues arise down at Muni Court.

Rage Judicata said...
This comment has been removed by the author.
Arthur Seaton said...

It is funny how the ones who don't practice criminal law know the most about it, eh anon 227? I would never presume to blather on about how securities lawyers break the law on an ongoing basis, but I guess that's just me.

By the way--what got us all into the financial mess we in right now--a few bad results in the criminal courthouse or massive misconduct in the financial sector? Hmmmmm.....

Rage Judicata said...
This comment has been removed by the author.
Arthur Seaton said...

Whining? How is it whining to point out your obvious lack of knowledge on every issue, especially Brady?

You want to know how the DA's office avoids Brady violations? The same way we do in the THOUSANDS of cases handled properly, as opposed to the MINUSCULE amount of cases where some mistake or impropriety occurred.

Asking people to take all error out of inherenlty flawed systems run and populated by people is just one of the more stupid soapboxes I have seen someone stand on in a long time. Sadly, you aren't alone.

Rage Judicata said...

How is it whining to point out your obvious lack of knowledge on every issue, especially Brady?

Point to one misstatement I've made on Brady.

You want to know how the DA's office avoids Brady violations? The same way we do in the THOUSANDS of cases handled properly

And how is that? By not putting exculpatory material in the file in the first place, so if they do see the file the never find out about it?

Asking people to take all error out of inherenlty flawed systems run and populated by people

Interesting. Since you agree that the system is inherently flawed, would you agree that the administration of certain remedies, like the death penalty, should be drastically revised? Or how about making sure we store evidence for much longer, to double check the inherent errors once a question about it is brought up?

Arthur Seaton said...

"Point to one misstatement I've made on Brady."
"From sleeping with the judge to hiding evidence, prosecutors have free reign to disclose, or not disclose, whatever they like."

Gee, there's one.

"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. "

Gee, there's two. Rosenthal never "regularly" did anything--especially try cases.

You want to revise the death penalty laws? Fine with me. Want to hold onto evidence longer? Great--who can argue with that?

Your problem is that you operate from the premise that the DA's office regularly breaks the law and withholds crucial evidence simply to put innocent people behind bars. At this point, I don't really know what to say to such an inherenlty flawed premise. At the end of the day, you still know absolutley nothing about it, and yet will claim to high heaven that your anecdotal "research" into the issue makes you right.

There are literally thousands of crimes committed in this county every year, and the DA's office handles 99.9% of in a legal, ethical, and moral manner. It's a damn shame that no one ever discusses that reality, preferring to scare monger and misdirect just to suit some sort of misguided agenda. Good luck with yours.

Rage Judicata said...

"From sleeping with the judge to hiding evidence, prosecutors have free reign to disclose, or not disclose, whatever they like."

Gee, there's one.


Interesting, in light of a recent revelation by a (now) former prosecutor that he was able to close a file whenever he wanted to.

To be found here, at 1-1-09 8:11 p.m.:
www.blogger.com/comment.g?blogID=7566778230970156239&postID=4455846614779170601"

And in light of the fact that the judge and prosecutor in Hood's case withheld their relationship for years. So what about my statements is inaccurate now?

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.

Gee, there's two. Rosenthal never "regularly" did anything--especially try cases.


That was a direct quote from him. Oops, guess you didn't follow the link.

You want to revise the death penalty laws? Fine with me. Want to hold onto evidence longer? Great--who can argue with that?

Lots of people. Especially Republicans in office or running for office. Also DA's who don't want their mistakes (or dishonesty) found out at a later date.

Your problem is that you operate from the premise that the DA's office regularly breaks the law and withholds crucial evidence simply to put innocent people behind bars.

I think they do it because they believe they're guilty, and will try to win at all costs. I don't believe they know they are putting innocent people away, nor do I believe it happens in all, or even the vast majority of, cases.

At this point, I don't really know what to say to such an inherenlty flawed premise.

Maybe if you actually knew what my premise was, you could respond more intelligently.

At the end of the day, you still know absolutley nothing about it,

Again, tell me what I've said wrong about Brady. Because you pointed to two instances that I supported with evidence, neither of which address the law as outlined in Brady.

and yet will claim to high heaven that your anecdotal "research" into the issue makes you right.

The Rachell case is an anectode? Charles Hood? Gary Scales? Randall Garcia?

Don't even get me started on the HPD crime lab. Holy Hell that's anything but an anecdote.

There are literally thousands of crimes committed in this county every year, and the DA's office handles 99.9% of in a legal, ethical, and moral manner.

I said this already.

It's a damn shame that no one ever discusses that reality, preferring to scare monger and misdirect just to suit some sort of misguided agenda. Good luck with yours.

I'm not scaremongering, I'm saying we need to look into certain cases. Are you opposed to efforts like the Innocence Project's in Dallas, or their review of crime lab cases?

Arthur Seaton said...

You mean this former prosecutor? "In one of your earlier comments you mentioned that Harris County has a closed file policy, but that was never the policy that I knew during my time there. I can count on one hand the times I closed a file to a defense attorney, and that was through thousands and thousands of cases. My reasoning for closing those files was based on a distrust of who I was dealing with. A closed file policy was never the norm as I knew it."


You can backtrack all you want, but you know very well that you are attempting to put the DA's office in as bad a light as possible, which I would expect from one who detests DA's offices in general.

Rage Judicata said...

Yes. That attorney. The one who said he could close a file whenever he wanted to, and that ADA's here in Harris County have the discretion to do so, regardless of the law and regardless of any open file policy at HCDA.

If you think that's backtracking, I feel truly sorry for your clients. And if you're a prosecutor here in Harris County, good for you, because with your abilities you wouldn't be able to win a case anywhere but here, where the law and the facts play second fiddle to conviction ratings.

Arthur Seaton said...

"Yes. That attorney. The one who said he could close a file whenever he wanted to, and that ADA's here in Harris County have the discretion to do so, regardless of the law and regardless of any open file policy at HCDA. "

Lol. In other words, there is NO policy to close files, and even though it is theoretically possible, he says it isn't done as a matter of course. But you, who have ZERO knowledge on the subject, choose to believe him when it suits, and not when it doesn't, depending on your argument du jour. Interesting.

"If you think that's backtracking, I feel truly sorry for your clients. And if you're a prosecutor here in Harris County, good for you, because with your abilities you wouldn't be able to win a case anywhere but here, where the law and the facts play second fiddle to conviction ratings."

Even more lol. Face it--you have no idea what goes on the courthouse, but would like to think that you do. That's fine and dandy--it makes you exaclty like a billion other armchair quarterbacks out there. Whatever floats your boat man. I love the end though--I disagree with you and point out your bullshit, so I must be some shitty lawyer who can only win by breaking the law. Congratulations--you've sunk as far as you can.

Rage Judicata said...

Lol. In other words, there is NO policy to close files, and even though it is theoretically possible, he says it isn't done as a matter of course. But you, who have ZERO knowledge on the subject, choose to believe him when it suits, and not when it doesn't, depending on your argument du jour. Interesting.

I never said it was done as a matter of course, I said they could do it on a whim. I've never said anything different. Jesus man, learn to read.

Even more lol. Face it--you have no idea what goes on the courthouse, but would like to think that you do. That's fine and dandy--it makes you exaclty like a billion other armchair quarterbacks out there. Whatever floats your boat man. I love the end though--I disagree with you and point out your bullshit, so I must be some shitty lawyer who can only win by breaking the law. Congratulations--you've sunk as far as you can.

You haven't pointed anything out. You constantly misquote me, trying to work in terms of absolutes when I've said time and time again that it isn't always done, it isn't even often done, but we know that it has, in fact, been done.

Are you really a lawyer? Let me guess--Thurgood Marshall?

Arthur Seaton said...

Learn to read? Misquote? Are you really this full of shit?

If your point is that the weally weally bad things that have been done in extremely rare circumstances shouldn't happen, then so what? Why are you even bothering to type anything at all?

Rage Judicata said...

Again, another misquote. I just said "don't often happen," I didn't say "very rare."

If you know the system is inherently flawed, why don't you strive for improvements so wrongful convictions don't continue?

Then so what?

That's why. You don't care.

Arthur Seaton said...

You simply will never, ever eradicate "wrongful convictions." It can't be done. No way, no how. You didn't say "very rare" and neither did I. They are, IN FACT, "very rare," and no matter how you want to spin it, that remains the fact.

Bluster on, bluster on.

Rage Judicata said...

You simply will never, ever eradicate "wrongful convictions."

So why even try, right? Why do anything about known Brady violations, crime lab fraud used to gain wrongful convictions, and why even bother storing evidence that could someday right a wrong, even one done by mistake?

I know you don't care, but why don't prosecutors in general?

Arthur Seaton said...

Please re-read my comments from yesterday and today where I have said if preservation of evidence etc. is needed, then I am all for it.

I care--far too much.

Rage Judicata said...

And the rest of it? For instance, what would you have the State Bar or the state do to prosecutors who withhold exculpatory evidence?

The system may be inherently flawed, but that sort of thing is an intentional flaw on bahelf of prosecutors across the state.

You have yet to offer any alternatives, just say it's flawed and that there's no sense bringing it up.

Arthur Seaton said...

"but that sort of thing is an intentional flaw on bahelf of prosecutors across the state."

This is the problem--I cannot discuss any related issues if you insist on operating from this deeply flawed permise. What is it that you want to do with the less than 1% of prosecutors who do something intentional? Prosecute them? I agree with that. So what else? What else is your beef here?

Rage Judicata said...

How do you reach that less than 1% number?

My beef is that you may say you agree here, but you will do nothing about it. If you see it happen you won't report it, you won't ask the state bar to enforce it, and you won't ask your representative to pass laws creating a criminal penalty for it that's strong enough to deter it.

Arthur Seaton said...

"My beef is that you may say you agree here, but you will do nothing about it. If you see it happen you won't report it, you won't ask the state bar to enforce it, and you won't ask your representative to pass laws creating a criminal penalty for it that's strong enough to deter it."

Who's going to win the Super Bowl? What are the winning lott numbers going to be? You sure seem to know a lot about what will happen in the future.

I took an oath, as did you, to uphold the laws of the US and Texas. If I have the power to do something, I will damn sure do it. I will also damn sure not use the issue as some sort of vendetta against the DA's office and slag off the hardworking men and women who are doing their damndest to do a good job protecting every citizen they can. That's where we differ.

Rage Judicata said...

I took an oath, as did you, to uphold the laws of the US and Texas. If I have the power to do something, I will damn sure do it.

So, what did you do the last time you knew someone violated the rules. And don't tell me you've never seen it.

I will also damn sure not use the issue as some sort of vendetta against the DA's office and slag off the hardworking men and women who are doing their damndest to do a good job protecting every citizen they can. That's where we differ.

I'm just shining light on a few subjects. Sorry if any level of scrutiny bothers you. Also, the issue is not the ADA's who follow the rules, it's the ones who don't.

Save your indignation for someone else. Someone's pointing out the mess in Harris County and you can't stand it.

Arthur Seaton said...

"Someone's pointing out the mess in Harris County and you can't stand it."

Lol. Do you think you are the first person to whine about illusory rampant miscarriages of justice in Harris County? Quite the Upton Sinclair are you? Cutting and pasting a bunch of old Chronicle articles in an attempt to carry out a vendetta against the DA's office doesn't make you Woodward, or Bernstein.

Unlike you, I have been the HCCJC on a daily basis for quite some time, and have never seen a DA break the law. Not once. Not even close. They may do something defense attorneys don't like, and I am sure there are other defense attorneys who have had a bad experience, just as I am sure there are defense attorneys that broken the rules, but breaking hte law simply doesn't occur as often as you would like others to believe.

There's a mess in Harris COunty, but it damn sure isn't from the DA's office doing their best to keep your ungrateful as safe as possible.

Rage Judicata said...

You assume this is all I'm doing. And my weak cut and paste job sure has your panties in a wad.

My guess is that you have no idea what the law really is if you haven't seen it broken. Or you're outright lying, which is more likely the case.

Protecting me? Hardly. The government is not my friend, and if I need protection I'll start with the .45 in my closet, or the one in my car. The judicial system only acts after the fact, and often does as much harm as good judging by the rampant over-incarceration in Texas.

Again, tell me what you'll do to change what we know are mistakes in the HCDAO. If nothing, that speaks volumes. If you don't even see a problem that says even more. If Lykos does half of what she said she will, we'll have more exonerations here than the rest of the state combined.

I wonder if she and Leitner are sniffing around your office in their ongoing investigation into the ADA's there.

Arthur Seaton said...

"My guess is that you have no idea what the law really is if you haven't seen it broken. Or you're outright lying, which is more likely the case."

Well that's it for me. I am not interested in a "discussion" if your trump card is always the prick card.

Good luck to your blog. You may find that people would be more interested if you weren't a complete asshole, but you strike as the type who takes pride in being an asshole in the misguided notion that it somehow makes you a rebel or interesting.

Rage Judicata said...

Taking your ball and going home?

I've enjoyed the number of insults you threw my way, only to leave crying about me throwing one back. You haven't discussed a thing. You just came in here as an HCDAO apologist, ignoring known (hell, even admitted) flaws, and failed to answer a single substantive question.

Don't let the door hit you on the way out.

Arthur Seaton said...

My insults were mild at best, and certainly not disparaging your character or calling you a liar. You've shown yourself to be a piece of crap, so I am leaving you your ball--it ain't mine.

Enjoy wallowing in your own crauplence--you've earned it.

Anonymous said...

"Rage" -

Have you ever actually tried a criminal case that involved something more severe than a Class C violation?

You sound like one of those who likes to shout about unfounded opinions. What do you practice regularly? My guess is it is some civil crap. Am I close?