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District Attorneys' Report: Prosecutor Misconduct is Exceedingly Rare

The state association that represents prosecutors reviewed 91 cases in which Innocence Project researchers identified prosecutor error or misconduct. The organization concluded there were actually only six cases of misconduct.

The Texas District and County Attorneys Association released a report Monday about prosecutorial misconduct in the wake of the Michael Morton (pictured at bottom) exoneration. Among the examples discussed in the report are the cases of Delma Banks (top) and Anthony Graves (center).

In a report issued Monday morning, an association representing Texas prosecutors disputed what they say are illegitimate claims of rampant prosecutorial misconduct without accountability.

“It’s just not true,” said Rob Kepple, executive director of the Texas District and County Attorneys Association.

The association spent months reviewing 91 Texas cases in which the Northern California Innocence Project in a March report identified prosecutor error or misconduct. The TDCAA said it discovered only six instances “in which a prosecutor arguably engaged in deliberately dishonest or fraudulent conduct that produced unjust results.” 

Kepple said the Innocence Project report was “replete with errors” and called it “really kind of embarrassing from a scholarly aspect.” 

Cookie Ridolfi, founder of the Northern California Innocence Project, who researched the Texas misconduct data, said she stood by the organization’s findings. 

“I know the quality of the work we do, and I know it’s good work,” she said, adding that the goal of the project was to spur discussion of the issue of misconduct, which prosecutors are typically reticent to acknowledge.

And, she clarified, the Innocence Project report did not allege deliberate misconduct in all 91 cases.  

“Texans should be reassured to know that true prosecutorial misconduct is incredibly rare in Texas,” said Kendra Culpepper, Rockwall County criminal district attorney, in a prepared statement. “However, even a single act of intentional misconduct is one too many, and our profession is dedicated to stopping it from happening in the future.”

The role of prosecutors in wrongful convictions and questions about accountability for state lawyers whose mistakes lead to years in prison for innocent people have been the subject of intense debate in the wake of the Michael Morton exoneration last year. Morton was convicted in 1987 of murdering his wife and spent nearly 25 years in prison before DNA testing revealed that another man was connected to the crime. 

Morton’s attorneys allege that the prosecutor in his case, former Williamson County District Attorney Ken Anderson (now a state district judge), deliberately withheld evidence that could have led to his acquittal. Anderson has denied any wrongdoing, and a special court of inquiry that will determine whether the judge should face criminal charges is set to begin in December.

Morton applauded the association's report.

"This report will serve as a good starting point for our discussions with various stakeholders as we prepare to ask the Texas Legislature to make meaningful changes to state law," he said in a prepared statement.

Innocence Project advocates, along with Morton and other exonerees, have called for more accountability for prosecutors who commit misconduct. In its March report, the Innocence Project said it had identified court rulings in 91 cases in which judges ruled there was prosecutorial error or misconduct from 2004 to 2008. None of those cases, the report said, resulted in discipline for the state lawyer.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” Ridolfi said in March.

Kepple said prosecutors perceived the report as a shot at their profession. The TDCAA had already been conducting research on cases related to forensic science and other investigative techniques and decided to change the focus to debunk the Innocence Project’s claims. 

Ten of the 91 cases, the TDCAA found, involved federal prosecutors — not state lawyers. Almost a dozen of the cases involved no actual misconduct or error. And the vast majority of cases, according to the association, involved minor, unintentional or harmless trial errors that did not affect the outcome of the case.

“The implication [of the Innocence Project report] is there’s not enough punishment,” Kepple said. “It’s really just a terrible thing to suggest.”

The TDCAA found only six cases in which it identified prosecutorial misconduct, and most of those, Kepple said, were already widely known. Among them is the case of Anthony Graves, who was sentenced to death despite the real killer’s admission to the prosecutor that he alone had committed the crime and that Graves was not involved. Graves was exonerated in 2010 after spending 18 years behind bars.

On the list also was the case of former death row inmate Delma Banks. Banks, 53, was convicted of the 1980 shooting death of 16-year-old Richard Whitehead. The U.S. Supreme Court overturned Banks’ death sentence in 2004, finding that Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. Last month, Banks accepted a life sentence in a plea deal with prosecutors, and he will be eligible for parole in 2024, when he is 65. 

The State Bar of Texas did not reprimand prosecutors in those two cases. But the prosecutors’ association reported that state lawyers are held accountable more often than Innocence Project advocates acknowledged. Prosecutors can, and have been, criminally prosecuted. A prosecutor in Fort Bend County was removed from office for misusing secret grand jury information. Others have faced civil lawsuits and courts of inquiry and have been held in contempt by judges. And ultimately, prosecutors are accountable to voters, who have rejected incumbent state lawyers in elections where misconduct allegations were a key issue, according to the report.

Despite the association’s findings of little prosecutorial misconduct, Kepple said, the cases where it has happened provide valuable lessons. The TDCAA, he said, is planning to implement training to ensure that prosecutors understand what kind of evidence they must provide to defendants and their lawyers. And they hope to include law enforcement in that training so that police officers know what evidence they must provide to prosecutors.

“There’s a huge gap in training that needs to occur with law enforcement,” Kepple said.

The association also plans to work with law schools to ensure that prosecutorial ethics become a bigger part of the curriculum for future lawyers, he said.

One of the lessons learned from the cases that involved misconduct, Kepple said, is that cognitive bias, or tunnel vision, often contributes to prosecutorial errors. The prosecutor becomes convinced that a suspect is guilty and then is unable to recognize evidence that suggests otherwise. The organization is doing research to determine how to combat the phenomenon that can lead prosecutors down the path to a wrongful conviction. 

“We’re going to be working to design a long-term training program,” Kepple said.

Ridolfi, at the Northern California Innocence Project, applauded the prosecutor association’s plans to improve training and the group’s acknowledgement of even a few instances of misconduct.

“They’re sending out a public message to prosecutors everywhere that this is unacceptable,” she said. “In the past, there was silence.”

Morton said the report confirmed some of the problems he had identified in his ordeal. He said legislators ought to require that prosecutors' open their files to defense lawyers. And he said lawmakers should consider requiring district attorneys to complete training regarding so-called Brady laws that require prosecutors to turn over evidence that could point to the defendant's innocence.

In cases where prosecutors are guilty of misconduct, Morton said, he hopes lawmakers will repeal a four-year statute of limitations on that offense and those lawyers should risk losing their license to practice law.

"I believe tunnel vision can be mitigated. But, as I have said before, sometimes people cheat because they want to win," Morton said. "The key, in my opinion, is to have adequate and reasonable consequences for those who cheat."

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