In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.
None of those prosecutors has ever been disciplined.
“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.
At a symposium today at the University of Texas at Austin, exonerees Michael Morton of Texas and John Thompson of Louisiana, along with lawyers and legal scholars, will discuss the need for increased accountability for prosecutors nationally and in Texas. The symposium is part of a national accountability campaign by the New York-based Innocence Project.
Prosecutorial misconduct has become a national issue in the wake of the high-profile exoneration cases of Thompson and Morton.
Thompson, who was convicted of murder in 1984, was freed from Louisiana’s death row after investigators found biological evidence that proved his innocence. The evidence had been concealed in the Orleans Parish district attorney’s office for 15 years. A jury awarded him $14 million — $1 million for each year he spent in prison. The U.S. Supreme Court reversed the award in a 5-4 ruling last year, deciding that the prosecutor was not liable.
Morton served nearly 25 years of a life sentence before DNA results showed last year that he was innocent. His lawyers discovered that Ken Anderson, who oversaw Morton’s case as the Williamson County prosecutor in 1987, did not turn over evidence that could have led to his acquittal.
A rare court of inquiry is scheduled to begin in September and will investigate whether Anderson committed criminal prosecutorial misconduct. Anderson has said that while he regrets that the judicial system made mistakes in Morton's case, he did nothing wrong.
“There’s no disincentive for a prosecutor to do it unless he or she has an internal moral code themselves,” Ridolfi said. In a study of California cases, her organization reported that from 1997 to 2009, courts found 707 instances of prosecutorial misconduct. There were just six instances in which prosecutors were disciplined.
As more inmates are being freed based on DNA evidence, Ridolfi said, more cases of misconduct are being identified. Although it is often the same prosecutors who repeatedly engage in misconduct, she said, the problem reflects poorly on the entire justice system.
“It’s basically bringing down the integrity of all the district attorneys’ offices,” she said.
In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
Morton and his lawyers have said that they hope his case will prompt lawmakers and the State Bar of Texas to implement policies that hold prosecutors accountable for misconduct.
Rob Kepple, executive director of the Texas District and County Attorneys Association, said prosecutors are also discussing the issue of misconduct but have not reached a consensus about the scope of the problem or potential remedies.
State Sen. Rodney Ellis, D-Houston, said most prosecutors seek to do justice, but that when they make mistakes, there ought to be consequences.
“Society entrusts prosecutors with tremendous power in order to provide justice,” Ellis said in an email. “Yet that tremendous power cannot go unchecked, which is what seems to be the case all too often.”