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In Wake of Wrongful Convictions, Calls for Accountability

Prosecutors have long enjoyed relative immunity for their mistakes. In the wake of Michael Morton’s case and other high-profile exonerations, many have joined his call for new laws to hold prosecutors accountable.

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The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.

There’s no balancing of the books when you lose two and a half decades of your life to prison, Michael Morton says. He can’t make up for missing his son Eric’s childhood while he was stuck behind bars for a murder he didn’t commit.

“We’re starting from square one,” he says. “Today’s a new day and it’s a new experience and it’s a new life, and you make the best of what you have.”

Eric was 3 when Morton was sent to prison for his wife’s 1986 murder. It would be 25 years before DNA exonerated him. When the murder charge was dismissed in December, it was Texas’ 86th overturned conviction since 1989. But had the district attorney who prosecuted Morton turned over all the evidence in his files during the trial, the former grocery store manager and his lawyers argue, the entire tragedy could have been thwarted.

Now, in a rare court of inquiry that is being watched statewide, Morton is pursuing criminal charges against Williamson County state district Judge Ken Anderson, the former prosecutor who tried his case — and who made errors a judge ruled contributed to Morton’s wrongful imprisonment. Morton is also urging legislators to implement new laws that hold prosecutors accountable for serious missteps.

“I can’t make up for those lost years, but what I can do is prevent what happened to me from happening to someone else,” he says. 

Williamson County state district Judge Ken Anderson discusses the Michael Morton case during a Nov. 16, 2011, press conference.

Prosecutors have long enjoyed relative immunity for mistakes they make in their work. A Texas Tribune examination of 86 overturned convictions between 1989 and 2011 revealed that courts found prosecutor errors in nearly 25 percent of the cases. Most of the errors contributed to the wrong outcome, and the 21 men and women involved in those cases spent a total of more than 270 years in prison before their convictions were overturned.

The State Bar does not track prosecutor discipline separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, says she can recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86 wrongful convictions.

In the wake of Morton’s case and other high-profile exonerations, some lawmakers and reform advocates have joined his call for new laws to hold prosecutors accountable for mistakes that derail the lives of the wrongly convicted and their families.

Many prosecutors, though, argue that reform advocates exaggerate the problem. They say instances of true prosecutorial misconduct are rare and appropriate sanctions are in place to deal with them.

“You don’t just throw the baby out with the bathwater,” says Tarrant County District Attorney Joe Shannon. “All you’ve got is a few anecdotal situations where things went awry.”

What goes wrong?

Both prosecutors and defense lawyers agree that the vast majority of state lawyers are ethical and take the consequences of their decisions seriously.

“Human error is a natural part of any process,” Shannon says.

Prosecutors must often balance their constitutional duty to seek the truth with the demands of traumatized victims and a nervous public that wants to see a culprit apprehended.

And, Shannon says, district attorneys rely heavily on police investigations. If police work is sloppy or incomplete or if witnesses provide conflicting statements, the truth can be obscured even from prosecutors with the best intentions.

But tunnel vision can become a problem for both prosecutors and police, and it’s one that Dallas County District Attorney Craig Watkins says he has seen often in wrongful convictions. He created a conviction integrity unit that boosted Dallas County’s exoneration numbers to the highest in the state: 37 between 1989 and 2011.

Often, he says, police and prosecutors had made up their minds about a suspect too early in their investigation.

“As evidence comes in, we have to follow that path,” Watkins says. “There’s a failure to follow the other leads.”

Jennifer Laurin, an assistant professor at the University of Texas School of Law who teaches criminal law, says that when the brain is convinced of a particular scenario, people often have trouble processing incompatible information.

Under the Brady rule, named for a 1963 U.S. Supreme Court decision, prosecutors are required to provide defendants with exculpatory evidence — information that might prove they didn’t commit the crime. Under Texas law, prosecutors are allowed to decide which information in their files is exculpatory. But if a prosecutor is convinced that a person is guilty, he or she may be unable to recognize evidence that would be exculpatory, Laurin says.

In 17 of the 21 overturned Texas cases with prosecutorial errors, the courts ruled that exculpatory evidence was not given to defense lawyers.

“In the heat of that pursuit, it can become easy sometimes to do the wrong thing for the right ends,” Laurin says.

Sometimes, Watkins says, errors are made for even simpler reasons.

“Truth may not be the issue,” he says. “The issue may be winning.”

When prosecutors are punished

Even when a court rules that a prosecutor has made a mistake, that doesn’t mean discipline is in order, says Betty Blackwell, an Austin criminal defense lawyer who has served on the agency’s Commission for Lawyer Discipline.

To cross the line from prosecutorial error to prosecutorial misconduct that is punishable by the State Bar, there must be a determination of the prosecutor’s intent.

“The bar can only take action if a person knew it was [exculpatory] and didn’t turn it over,” she says. “It’s really a higher standard.”

Anthony Graves

The State Bar did not sanction former Burleson County District Attorney Charles Sebesta in the case of Anthony Graves. The U.S. 5th Circuit Court of Appeals ruled that Sebesta had violated the Brady rule by failing to disclose that another man had confessed that he alone had committed the murders for which Graves was convicted. But the State Bar dismissed a complaint filed against Sebesta for his work in the case, which put Graves in prison for 18 years, including 12 years on death row. 

Even if the State Bar does decide that a prosecutor engaged in misconduct, the public may never know that a sanction was issued. That’s because the agency can mete out private disciplinary measures.

In a rare move, the State Bar acknowledged last year that it was investigating a complaint against Anderson for his work in the Morton case. Asked about the outcome of the State Bar investigation, Anderson’s lawyer Eric Nichols said that there was “nothing public to report.”

Discipline of prosecutors is also rare because of the four-year statute of limitations on ethical violations, says Robert Schuwerk, a professor at the University of Houston Law Center who served on the committee that wrote the Texas Disciplinary Rules of Professional Conduct. In many cases, it takes much longer than four years to uncover suppressed evidence.

In his own review of public prosecutorial discipline over the past 23 years, Schuwerk says he discovered only three instances of reprimands. 

“Essentially, the disciplinary system has not done well by us,” he says.

Seeking solutions

Reform advocates say a few tweaks could help prevent prosecutorial errors and improve accountability for intentional violations.

Defense attorneys and many prosecutors agree that open file policies that allow criminal lawyers access to the state’s records would help prevent evidence suppression. The American Bar Association recommends reciprocal open discovery between the defense and prosecutors.

Nichols, who represents former Morton prosecutor Anderson, was previously a state and federal prosecutor. True open file policies, he says, would protect both the accused and the prosecutor.

“The prosecutor will not be in a position 25 years after a trial has been conducted of having to answer questions based on memory of what was disclosed to defense counsel,” he says.

In instances where prosecutors are found to have intentionally withheld evidence, reform advocates argue, lawmakers ought to extend the statute of limitations beyond four years.

Schuwerk suggested that prosecutors should be liable for intentional rules violations for up to five years after a person who was wrongfully convicted is released from prison.

“They need to stare that person in the eye and see what it’s like to be in prison for 18 years when you did nothing wrong,” he says.

But Nichols says the Morton case is a perfect example of why the existing statute of limitations is needed. Twenty-five years after Morton went to trial, he says, it’s nearly impossible to decipher exactly what went wrong and who is to blame.

“It is unfair to everyone involved to be presenting a case, civil or criminal, so far down the road,” Nichols says. 

Rob Kepple, executive director of the Texas District and County Attorneys Association, says the number of prosecutors who engage in misconduct is “exceedingly small.” Instead of changing the laws to require more discipline after mistakes happen, he says, training should be improved to prevent errors in the first place.

“My goal and our goal here is find a way to be better at what we do and to avoid problems,” Kepple says.

State Sen. Rodney Ellis, D-Houston, chairman of the New York-based Innocence Project, says that more education is not enough when the consequences of prosecutor mistakes can be so dire. When lawmakers reconvene in 2013, he says, they will remember not only that Morton lost nearly 25 years to prison, but also that errors in his case allowed the real murderer to remain free to hurt others. Authorities have linked the DNA of Mark Norwood, a 58-year-old Bastrop dishwasher who is awaiting trial for Christine Morton’s murder, to another Austin killing that happened in 1988.

State Sen. Rodney Ellis, D-Houston.

Ellis says he would like to see the State Bar tighten its rules and become more transparent in its discipline.

“They could do a hell of a lot more than they are doing,” he says.

Meanwhile, Morton awaits the September court of inquiry that will determine whether Anderson faces criminal charges for his role in the trial that ruined his life. He knows that prosecutors statewide are waiting, too.

“If nothing happens, then they’re going to wipe their brows and go, ‘Shew! We can still do anything we want and not worry about it,’” he says.

Without some changes in the system, Morton says, the tragedy that befell his family, could happen to anyone. Before the murder, his life was just like any other Texas suburbanite's. He  had no criminal history. He worked and took care of his wife and toddler son. The couple was saving for a house on the lake, talking about having more children and Morton was starting his own business.

If prosecutors knew they could face consequences for their mistakes, like a fine or the risk of losing their law license, Morton says, they would play fair in the courtroom.

“I just can’t imagine this coming to naught,” he says. “Something’s going to happen. I’m confident of it.”

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