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Disciplinary Action against Rogue Prosecutors Who Intentionally Engage in Wrongful Conduct, Brady Violations Rare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Among lawyers practicing criminal law, “Brady violation” is probably second only to a “Miranda warning” as the most recognizable legal term in this country’s jurisprudence; and, significantly, both of these U.S. Supreme Court decisions are designed to curb prosecutorial and law enforcement misconduct. It’s an unfortunate commentary on our criminal justice system when these two important must be instructed by the highest court in the nation to obey the law and uphold our most cherished constitutional tenets: right to a fair trial and right to counsel.

As far back as 1908, when the American Bar Association adopted its Canons of Professional Ethics (“Canons”), prosecutors have been instructed that “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but see that justice is done. The suppression of facts or secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

It is telling that more than a century ago the ABA felt the need to instruct prosecutors to do the obvious: obey the law. It is evident that the overseer of professional conduct of our Country’s legal system had witnessed enough misconduct by prosecutors before 1908 to feel the need to establish Canon 5 as “guidance” for prosecutors.

Twenty-seven years after the Canons were adopted the U.S. Supreme Court, in

Twenty-seven years after the Canons were adopted the U.S. Supreme Court, in Mooney v. Holohan, was forced to inform prosecutors that the “knowing use” of perjured testimony to convict a criminal defendant violated “due process” of law. The Attorney General for the State of California had argued before the Court that the acts or omissions by a prosecutor could never rise to the level of a due process violation. The Court said that such a position would violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Not stopping there, the Court added that the requirement of due process,

“ … cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which, in truth, is but used as a means of depriving a defendant of liberty through a deliberate deception of the court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure a conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the state, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That amendment governs any action of a state, ‘whether through its legislature, through its courts, or through its executive or administrative officers.”

What was so hard to understand about that constitutional instruction: prosecutors have a fundamental duty to uphold the law and play fair? This duty was made even clearer by the Supreme Court just three months after Mooney in the case of Berger v. United States. In that federal conspiracy case, the Supreme Court found that a U.S. attorney had engaged in “misconduct” through his trial tactics:

“That the United States Attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous manner. We reproduce from the record illustrating some of the various points of the foregoing summary. It is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct. The trial judge, it is true, sustained objections to some of the questions, insinuations, and misstatements, and instructed the jury to disregard them. But the situation was one which called for a stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.”

Two cases, two prosecutors—one state, the other federal—engaging in deliberate misconduct in order to obtain a criminal conviction. These two examples of prosecutorial misconduct cited in 1935 by a very conservative Supreme Court shamefully demonstrated just how pervasive such conduct has always been in our legal system. More to the point, it reflects just how casually some prosecutors have historically disregarded the Canons of professional conduct. As further evidence of this harsh criticism of prosecutors, we point to yet another Supreme Court decision in 1959, Napue v. Illinois, which reiterated the principal established by Mooney: “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment.”

Nearly a quarter of a century after Mooney the Supreme Court was once again forced to tell prosecutors that they cannot “lie, cheat or steal” to secure a criminal conviction; that they must play by clearly established rules of due process of law enshrined in the Fifth and Fourteenth Amendments of the United States Constitution. The Mooney decision notwithstanding, prosecutors in the State of Maryland, just months before Napue was decided, secured convictions against John L. Brady and Charles Donald Boblit for a first degree murder that occurred during a robbery. Both men were sentenced to death. At his trial Brady took the stand and admitted taking part in the robbery but said Boblit was the one who actually killed the victim, William Brooks. Brady’s defense counsel argued in summation that while his client should be convicted of first degree murder, he should not be sentenced to death because he did not kill the victim. Brady’s attorney had requested prior to trial that prosecutors provide him with “extrajudicial statements” made by Boblit. Several of those statements were shown to the defense attorney but one statement in which Boblit admitted he was the one who strangled the victim was withheld by prosecutors. Defense counsel learned of this statement after Brady had been tried, convicted, sentenced to death, and after his conviction and sentence were upheld on direct appeal. The Supreme Court in 1963, in the renowned Brady v. Maryland decision, once again held:

“The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain, ‘The United States wins its point whenever justice is done its citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in a role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile’ …”

Perhaps in response to decisions like Mooney, Berger, Napue and Brady, the ABA in 1969 changed its Canons to the Model Code of Professional Responsibility which, as Lisa M. Kurcias said in the Fordham Law Review article, was “essentially a redraft of the Canons.” However, beyond stating a number of Disciplinary Rules as being mandatory, the Model Code offered discretionary “Ethical Considerations” designed to guide attorneys in the administration of justice. The preliminary statement of the Model Code specifically stated that its Ethical Considerations “are aspirational in character and represent the objectives toward which every member of the profession should strive.”

Led by Hofstra Law School Professor Monroe H. Freedman, some critics criticized the Model Code as both incoherent and possibly unconstitutional. The criticisms, as pointed out by Ms. Kurcias, prompted the ABA in 1983 to adopt its Model Rules of Professional Conduct. As we pointed out in a previous post, these Rules have since been adopted, in some form or another, by 49 of the nation’s fifty states, as well as by the District of Columbia, Virgin Islands, and Guam.

Rule 3.8(d) of the Model Rules imposes the following “special” responsibility on prosecutors to “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.”

During the years between 1969, when the ABA adopted the Model Code, and 1983, which saw the release of the Model Rules, the Supreme Court issued three significant decisions to “guide” prosecutors toward their duty to obey the law. The first, Giglio v. United States, came in 1972 which extended the Brady disclosure rule to impeachment evidence. The Government in Giglio had withheld information that a U.S. attorney had made a promise to a key witness that if the witness testified before a grand jury, he would not be prosecuted. The witness later testified at trial that no one had made any “promises” to him about not being prosecuted if he implicated others in the crime. The Court held that had the Government provided information about the non-prosecution promise to the defense, it could have used the information to impeach the witness’s credibility.

The second decision, Moore v. Illinois, came just four months after Giglio. While standing by its Brady and Napue decisions, the Moore Court held there is “no constitutional requirement that the prosecution make complete and detailed accounting to the defense of all investigatory work on a case.” The Court reasoned that while some evidence may help the defense or even affect the verdict of the trial, it does not automatically follow that the evidence is “material” in a constitutional sense.

Finally, the third decision, Agurs v. United States, came in 1976. Agurs expanded the Brady duty to disclose upon request requirement to cases in which no request is made. The Court reasoned that since defense counsel may not be aware of any exculpatory evidence in the possession of the prosecution, the burden to disclose therefore shifts to the prosecution, regardless of the absence of a specific request.

Agurs, however, introduced the “harmless error” equation into the Brady rule—a derivative of Chapman v. California, which held that if an error in a criminal proceeding does not affect the outcome of that proceeding, then the error is deemed “harmless.” The Agurs Court defined the harmless error rule for Brady errors:

“On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered by a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.

“On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty to routinely deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his ‘conviction is sure that the error did not influence the jury, or had but very slight effect.’ Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.”

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

What emerged out of Brady, Giglio and Agurs is the following three prerequisites necessary to make out a Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

This significant curtailment of Brady notwithstanding, the Agurs Court emphasized that a prosecutor is a minister of justice and not just an advocate, and “this responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the prosecutor.”

Agurs drew its emphasis from Brady language that disclosure is required when the evidence is both “favorable” to the defense and is “material” to either guilt or punishment. A decade after Agurs and two years after the Model Rules, the Supreme Court reinforced the “materiality” standard set forth in Agurs, perhaps to diminish the responsibility of prosecutors to disclose favorable evidence to the defense. In Bagley v. United States, the Court held that evidence is material if it creates a “reasonable probability” that its disclosure would have altered the outcome of verdict. The Bagley Court said that a “reasonable probability” is “a probability sufficient to undermine the confidence in the outcome;” and to reach such a conclusion, the reviewing court must go beyond the mere probative value of the suppressed evidence and consider the cumulative effect of the suppressed evidence in light of all the other evidence. And that is a tough nut to crack.

In Bagley, a narcotics and firearms case, the Government had two principal witnesses, both of whom were private security guards. Three weeks prior to trial the defense filed a discovery motion requesting any “deals, promises or inducement made to witnesses in exchange for their testimony.” In its response to this request, the Government did not disclose any deals, promises or inducements given to the two witnesses. In fact, the Government provided the defense with affidavits signed by the two witnesses stating they had not been offered any rewards or promises of reward in exchange for their testimony. Following his conviction, Bagley filed a Freedom of Information Act request concerning the Government’s relationship with the two witnesses and discovered that the Government had indeed provided remuneration to the witnesses in exchange for their testimony.

In upholding the defendant’s conviction, the Bagley Court held that if the withheld evidence was a “constitutional error,” it was “the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination [of the two witnesses] … [but] such [a] suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent [with our position in Agurs], a constitutional error occurs and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.”

In effect, the materiality requirement of both Agurs and Bagley had the effect, if not the intent, of diminishing the “Ethical Considerations” of the Model Code and the “Responsibilities” of the Model Rules directed toward prosecutors. The sum of the two cases, in stark contrast to Mooney, Berger, Napue and Brady, allows prosecutors to violate the law and their professional ethics in cases in which they believe evidence of guilt is reasonably probable.

This inevitably raises the question: what can be done to hold prosecutors accountable when they engage in unlawful and/or unethical conduct that does not result in reversal of conviction? The answer, quite simply, is not much. As University of Arizona College of Law Professor, Ted Schneyer, wrote in a 1996 Fordham Law Review article, “[T]he ABA writes ethics codes and state supreme courts give them legal effect.”

At the outset, it must be noted that the Supreme Court, in Imbler v. Pachtman, held that prosecutors enjoy “absolute immunity” for any misconduct related to their “prosecutorial function.” Imbler was decided in 1976, three months before Agurs and two months after Moore. And the Supreme Court earlier this year, 2011, in Connick v. Thompson, held that the municipality for which prosecutors are employed cannot be held liable for monetary damages for unlawful or unethical conduct by prosecutors absent a showing that the prosecutorial misconduct was engaged in pursuant to an “official municipality policy,” which requires a showing that municipality lawmakers, such as a district attorney’s office, engaged in wrongful decision-making practices so “persistent and widespread as to practically have the force of law.” That’s an impossible nut to crack.

As Ms. Kurcias put it, “while the Supreme Court requires prosecutors to disclose certain evidence to the defense, consequences for withholding such evidence do not exist in the criminal justice system. In fact, the Supreme Court has granted prosecutors absolute immunity from civil liability for failure to disclose exculpatory evidence. Thus, prosecutors do not fear being sued for withholding evidence and the Brady Rule is consequently weakened. As one commentator stated, ‘[i]sofar as federal law is concerned, we have no reason at all to believe, under these consequences, that prosecutors will not continue to ignore their constitutional obligation under Brady. Consequently, encouragement for prosecutors to adhere to this requirement must be found elsewhere. Ideally, the ethics rules would supply this incentive.’”

But, given the historical resistance of state bar associations to imposing disciplinary sanctions on rogue prosecutors who engage in Brady misconduct, even when they are “repeat offenders, this incentive is weak. Insulated from civil liability with absolute immunity and facing reversal of conviction only in cases where guilt is not compelling, prosecutors have been granted by the Supreme Court and state bar disciplinary committees a license to engage in unlawful and unethical misconduct with virtual impunity. This was evidenced by an article in the Washington & Lee Law Review by University of Utah Law Professor Daniel S. Medwed who referenced a 1999 study of Illinois state criminal convictions reversed as a result of prosecutorial misconduct. Of the 326 reversals, only two prosecutors were subject to disciplinary sanctions and a third was dismissed from the State Attorney’s Office. Likewise, other prominent legal scholars, such as renowned Professor of Legal Ethics Fred Zacharies, have written that “the body of cases [involving disciplinary sanctions] is not entirely negligible.”

The New York-based Innocence Project says some of the 280 DNA exonerations in this country involved prosecutorial misconduct. The project’s executive directors, Barry Scheck and Peter Neufeld, conducted a study of the first 74 DNA-based exonerations and found that 37 percent involved suppression of exculpatory evidence, 25 percent involved the knowing use of false testimony, and 11 percent involved the use of coerced testimony.

Professor Medwed also had this to say about the lack of disciplinary sanctions in these kinds of cases: “… disciplinary bodies hardly ever sanction prosecutors who disregard Brady’s precepts. Two decades ago, Richard Rosen studied written disciplinary decisions nationwide and dug up only nine cases in which a prosecutor had ever been referred to the ethics board for suppressing exculpatory evidence. Just one of those nine disciplinary proceedings ended with a sanction, and merely a suspension at that. Rosen’s research methodology included a survey sent to disciplinary representatives in every state. Thirty-five of the forty-one states that responded to the query indicated that no formal complaints had ever been filed alleging Brady-type misconduct.

“Joseph Weeks followed up on Rosen’s research ten years later and discovered a similar pattern. Weeks found seven cases where prosecutors had been referred to disciplinary bodies for purported Brady violations. Four of these referrals resulted in sanctions, the most severe of which was a six-month suspension. These findings about the paucity of discipline imposed on prosecutors for Brady violations, even the rarity of allegations themselves, are startling. Nothing suggests things have changed much in recent years. On the contrary, data produced by groups across the country suggest that disciplinary agencies stand idly by as the tide of Brady violations, if not rising, continues unabated.”

Two years before the results of Rosen’s study was released, an en banc panel of the Texas Court of Criminal Appeals in Ex Parte Adams, found that Dallas’ First Assistant District Attorney Doug Mulder had suppressed favorable evidence, knowingly used perjured testimony, and deceiving the trial court during the defendant’s capital murder trial. The defendant, Randall Dale Adams, whose wrongful conviction for the murder of a Dallas police officer became known through the nationally acclaimed documentary A Thin Blue Line, spent twelve years under a death sentence before his conviction was set aside. Mulder, whose misconduct was clearly detailed by the Court of Criminal Appeals, never faced any disciplinary action for sending an innocent man to death row—a man who came within 72 hours of execution.

In Banks v. Dretke the Supreme Court confronted yet another Texas case involving a Brady violation. Delma Banks, then twenty-one years of age, was put to trial in September 1980 in Bowie County for the murder of a 16-year-old teenager. He was convicted of capital murder and sentenced to death. Banks was strapped to the gurney in the state’s death chamber before receiving a stay from the Supreme Court just 10 minutes before the lethal cocktail was to be administered. Banks’ conviction was based primarily on two key witnesses; and as the Supreme Court pointed out in its 2004 decision, “the State withheld evidence that would have allowed Banks to discredit [these] two essential prosecution witnesses. The State did not disclose that one of those witnesses was a paid police informant, nor did it disclose a pretrial transcript that the other witness’ trial testimony had been intensively coached.” In fact, the prosecutor told the jury that the coached witness had “brought you absolute truth.”

Writing for the majority opinion, Justice Ruth Bader Ginsburg was particularly critical of the arguments State attorneys made before the Court: “The State here nevertheless urges, in effect, that ‘the prosecution can lie and conceal and the prisoner still has the burden to … discover the evidence,’ so long as the ‘potential existence’ of a prosecutorial misconduct claim have been detected. A constitutional rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process. ‘Ordinarily, we presume that public officials have properly discharged their official duties.’ We have several times underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials. Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper methods to secure a conviction] … plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.’ Prosecutors’ dishonest conduct and unwarranted concealment should attract no judicial approbation.”

Clearly, some Texas prosecutors, like those California prosecutors who argued before the Supreme Court in Mooney, believe that “absolute immunity” and “harmless error” are not enough. They want the Supreme Court to grant them an unfettered license to “lie and conceal,” even when it means potentially innocent defendants will be executed or spend the rest of their lives in prison. As we discussed in two previous posts (here and here), that almost happened to Michael Morton who was wrongly convicted and sentenced to life imprisonment for the 1986 murder of his wife. Two Williamson County, Texas, prosecutors, Ken Anderson and Mike Davis, withheld material evidence that would have, at a minimum, surely resulted in a not guilty verdict. And to make matters even worse, current Williamson County District Attorney John Bradley fought for six years to prevent a key piece of evidence from being DNA tested—and when the evidence was eventually tested, it not only exonerated Morton but identified the real killer.

The Texas Court of Criminal Appeals officially declared Morton “innocent” this past October while the Texas State Bar announced it had launched an “investigation” into the conduct of all the prosecutors involved in the case. In the heat of the Morton controversy in October, the Texas Tribune reported on the issue of whether current state discovery laws should be expanded:

“Prosecutors, though, have not been the only ones to object to expanding discovery, said Rob Keppel, executive director of the Texas District and County Attorneys Association. Defense lawyers, he said, have objected to legislation that would also require them to turn over evidence to prosecutors.

“What is more, Keppel said, a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.

“’If somebody didn’t play fair back then,’ he said, ‘I’m not sure exactly what law we change would address it.’”

But the real issue is not sharing evidence—the real issue is whether, as Justice Ginsburg noted, prosecutors should be allowed to “lie and conceal.” Many Texas district attorneys have an “open file” office policy which is not required under Moore. Still, that does not insure prosecutors have not lied or concealed material favorable evidence. There is a reasonable solution to the “lie and conceal” prosecutorial tactics. It was expressed by Grits for Breakfast, and we share his point of view:

“In this writer’s view, the best, simplest fix would be to eliminate ‘absolute immunity’ for prosecutors. While Texas legislators can’t overrule federal decisions (‘absolute immunity’ exists in no statute but is a judicial creation from the U.S. Supreme Court), the Lege would have to create its own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last sessions which would do just that in reaction to the Anthony Graves case …

“There was a committee substitute offered on that bill that would have given prosecutors ‘qualified immunity,’ which is the same as for police officers, instead of eliminating immunity entirely. Personally I’d prefer to no immunity – the same standard under which defense attorneys operate. Cops’ get qualified immunity – which still protects them from virtually all civil liability – because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn’t be held liable in civil court for egregious, intentional misconduct and there is no ‘free-standing’ due process right not to be framed.”

On November 11, 2011 the Dallas Morning News editorialized against “rogue prosecutors” in Texas. Besides the Michael Morton travesty, the newspaper cited the following cases in which individuals were wrongfully convicted by such prosecutors: (1) Anthony Graves, who was framed by Burleson County prosecutors, spent 18 years in prison, including death row, before being officially exonerated last year and awarded $1.4 million as compensation for the “bogus murder conviction;” (2) Dale Lincoln Duke, now 60, was released in Dallas County on November 4, 2011 after spending 14 years in prison on child abuse charges because prosecutors withheld evidence that the child’s grandmother thought the girl was lying. Duke was released after a state trial judge declared his conviction “unjust;” and (3) Chelsea Richardson, 27, was released from death row after a November 1, 2011 appeals court decision found prosecutors had withheld evidence that a different defendant may have been the “mastermind” in the murder of her parents–prosecutors had secured a death sentence by portraying Richardson as the “mastermind” behind the double murder—and she will now be sentenced to life imprisonment, just as her boyfriend was.

Don’t get us wrong. There are states with just as disgraceful history as Texas when it comes to Brady violations. For example, Ken Armstrong and Maurice Possley, writing in the Chicago Tribune in January 1999, produced an investigative piece titled “The Verdict: Dishonor.” Their study examined 67 death row cases granted new trials because of Brady violations. The reporters found that 24 of the condemned inmates were freed because charges were dismissed, or they were acquitted, or granted full pardons. Three pled guilty in exchange for sentences that freed them immediately while five others were re-convicted but received sentences less than death. Only four of the 67 were re-sentenced to death.

These case examples of Brady violations underscore what is no longer an anomaly but is fast becoming a norm in our criminal justice system: prosecutorial misconduct. It has become the single worse shame and disgrace in our system of justice: the “ministers of justice” charged with seeking and honoring the truth arguing that they enjoy the right to “lie and conceal” in pursuit of criminal convictions. Professor Bennett L. Gersham, writing in the South Texas Law Review, summed up this disturbing problem as follows:

“Making prosecutors accountable for violations of Brady has not been a success. To be sure, bar associations and grievance committees have the power to discipline prosecutors for violations of ethical rules. However, most commentators agree that professional discipline of prosecutors is extremely rare. The absence of significant discipline of prosecutors is particularly noteworthy in cases in which prosecutors intentionally suppress evidence that leads to a reversal of a defendant’s conviction and a stinging rebuke by a court of the prosecutor’s misconduct. Although one would realistically expect disciplinary agencies to proceed aggressively against such unscrupulous conduct, such is not the case. Moreover, of all the ethical rules relating to the conduct of a prosecutor, the ethical rule governing a prosecutor’s suppression of evidence is the most explicit and easiest to enforce. However, when faced with this ‘most dangerous conduct,’ disciplinary bodies typically look the other way.”

By either failing or refusing to impose disciplinary sanctions on rogue prosecutors, especially those who send innocent persons to death row, disciplinary agencies have become complicit in this increasing pattern of unethical conduct and criminal wrongdoing by prosecutors. The time has come for that to change…

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization>Mooney v. Holohan, was forced to inform prosecutors that the “knowing use” of perjured testimony to convict a criminal defendant violated “due process” of law. The Attorney General for the State of California had argued before the Court that the acts or omissions by a prosecutor could never rise to the level of a due process violation. The Court said that such a position would violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Not stopping there, the Court added that the requirement of due process,

“ … cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which, in truth, is but used as a means of depriving a defendant of liberty through a deliberate deception of the court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure a conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the state, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That amendment governs any action of a state, ‘whether through its legislature, through its courts, or through its executive or administrative officers.”

What was so hard to understand about that constitutional instruction: prosecutors have a fundamental duty to uphold the law and play fair? This duty was made even clearer by the Supreme Court just three months after Mooney in the case of Berger v. United States. In that federal conspiracy case, the Supreme Court found that a U.S. attorney had engaged in “misconduct” through his trial tactics:

“That the United States Attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous manner. We reproduce from the record illustrating some of the various points of the foregoing summary. It is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct. The trial judge, it is true, sustained objections to some of the questions, insinuations, and misstatements, and instructed the jury to disregard them. But the situation was one which called for a stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.”

Two cases, two prosecutors—one state, the other federal—engaging in deliberate misconduct in order to obtain a criminal conviction. These two examples of prosecutorial misconduct cited in 1935 by a very conservative Supreme Court shamefully demonstrated just how pervasive such conduct has always been in our legal system. More to the point, it reflects just how casually some prosecutors have historically disregarded the Canons of professional conduct. As further evidence of this harsh criticism of prosecutors, we point to yet another Supreme Court decision in 1959, Napue v. Illinois, which reiterated the principal established by Mooney: “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment.”

Nearly a quarter of a century after Mooney the Supreme Court was once again forced to tell prosecutors that they cannot “lie, cheat or steal” to secure a criminal conviction; that they must play by clearly established rules of due process of law enshrined in the Fifth and Fourteenth Amendments of the United States Constitution. The Mooney decision notwithstanding, prosecutors in the State of Maryland, just months before Napue was decided, secured convictions against John L. Brady and Charles Donald Boblit for a first degree murder that occurred during a robbery. Both men were sentenced to death. At his trial Brady took the stand and admitted taking part in the robbery but said Boblit was the one who actually killed the victim, William Brooks. Brady’s defense counsel argued in summation that while his client should be convicted of first degree murder, he should not be sentenced to death because he did not kill the victim. Brady’s attorney had requested prior to trial that prosecutors provide him with “extrajudicial statements” made by Boblit. Several of those statements were shown to the defense attorney but one statement in which Boblit admitted he was the one who strangled the victim was withheld by prosecutors. Defense counsel learned of this statement after Brady had been tried, convicted, sentenced to death, and after his conviction and sentence were upheld on direct appeal. The Supreme Court in 1963, in the renowned Brady v. Maryland decision, once again held:

“The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain, ‘The United States wins its point whenever justice is done its citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in a role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile’ …”

Perhaps in response to decisions like Mooney, Berger, Napue and Brady, the ABA in 1969 changed its Canons to the Model Code of Professional Responsibility which, as Lisa M. Kurcias said in the Fordham Law Review article, was “essentially a redraft of the Canons.” However, beyond stating a number of Disciplinary Rules as being mandatory, the Model Code offered discretionary “Ethical Considerations” designed to guide attorneys in the administration of justice. The preliminary statement of the Model Code specifically stated that its Ethical Considerations “are aspirational in character and represent the objectives toward which every member of the profession should strive.”

Led by Hofstra Law School Professor Monroe H. Freedman, some critics criticized the Model Code as both incoherent and possibly unconstitutional. The criticisms, as pointed out by Ms. Kurcias, prompted the ABA in 1983 to adopt its Model Rules of Professional Conduct. As we pointed out in a previous post, these Rules have since been adopted, in some form or another, by 49 of the nation’s fifty states, as well as by the District of Columbia, Virgin Islands, and Guam.

Rule 3.8(d) of the Model Rules imposes the following “special” responsibility on prosecutors to “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.”

During the years between 1969, when the ABA adopted the Model Code, and 1983, which saw the release of the Model Rules, the Supreme Court issued three significant decisions to “guide” prosecutors toward their duty to obey the law. The first, Giglio v. United States, came in 1972 which extended the Brady disclosure rule to impeachment evidence. The Government in Giglio had withheld information that a U.S. attorney had made a promise to a key witness that if the witness testified before a grand jury, he would not be prosecuted. The witness later testified at trial that no one had made any “promises” to him about not being prosecuted if he implicated others in the crime. The Court held that had the Government provided information about the non-prosecution promise to the defense, it could have used the information to impeach the witness’s credibility.

The second decision, Moore v. Illinois, came just four months after Giglio. While standing by its Brady and Napue decisions, the Moore Court held there is “no constitutional requirement that the prosecution make complete and detailed accounting to the defense of all investigatory work on a case.” The Court reasoned that while some evidence may help the defense or even affect the verdict of the trial, it does not automatically follow that the evidence is “material” in a constitutional sense.

Finally, the third decision, Agurs v. United States, came in 1976. Agurs expanded the Brady duty to disclose upon request requirement to cases in which no request is made. The Court reasoned that since defense counsel may not be aware of any exculpatory evidence in the possession of the prosecution, the burden to disclose therefore shifts to the prosecution, regardless of the absence of a specific request.

Agurs, however, introduced the “harmless error” equation into the Brady rule—a derivative of Chapman v. California, which held that if an error in a criminal proceeding does not affect the outcome of that proceeding, then the error is deemed “harmless.” The Agurs Court defined the harmless error rule for Brady errors:

“On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered by a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.

“On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty to routinely deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his ‘conviction is sure that the error did not influence the jury, or had but very slight effect.’ Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.”

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

What emerged out of Brady, Giglio and Agurs is the following three prerequisites necessary to make out a Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

This significant curtailment of Brady notwithstanding, the Agurs Court emphasized that a prosecutor is a minister of justice and not just an advocate, and “this responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the prosecutor.”

Agurs drew its emphasis from Brady language that disclosure is required when the evidence is both “favorable” to the defense and is “material” to either guilt or punishment. A decade after Agurs and two years after the Model Rules, the Supreme Court reinforced the “materiality” standard set forth in Agurs, perhaps to diminish the responsibility of prosecutors to disclose favorable evidence to the defense. In Bagley v. United States, the Court held that evidence is material if it creates a “reasonable probability” that its disclosure would have altered the outcome of verdict. The Bagley Court said that a “reasonable probability” is “a probability sufficient to undermine the confidence in the outcome;” and to reach such a conclusion, the reviewing court must go beyond the mere probative value of the suppressed evidence and consider the cumulative effect of the suppressed evidence in light of all the other evidence. And that is a tough nut to crack.

In Bagley, a narcotics and firearms case, the Government had two principal witnesses, both of whom were private security guards. Three weeks prior to trial the defense filed a discovery motion requesting any “deals, promises or inducement made to witnesses in exchange for their testimony.” In its response to this request, the Government did not disclose any deals, promises or inducements given to the two witnesses. In fact, the Government provided the defense with affidavits signed by the two witnesses stating they had not been offered any rewards or promises of reward in exchange for their testimony. Following his conviction, Bagley filed a Freedom of Information Act request concerning the Government’s relationship with the two witnesses and discovered that the Government had indeed provided remuneration to the witnesses in exchange for their testimony.

In upholding the defendant’s conviction, the Bagley Court held that if the withheld evidence was a “constitutional error,” it was “the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination [of the two witnesses] … [but] such [a] suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent [with our position in Agurs], a constitutional error occurs and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.”

In effect, the materiality requirement of both Agurs and Bagley had the effect, if not the intent, of diminishing the “Ethical Considerations” of the Model Code and the “Responsibilities” of the Model Rules directed toward prosecutors. The sum of the two cases, in stark contrast to Mooney, Berger, Napue and Brady, allows prosecutors to violate the law and their professional ethics in cases in which they believe evidence of guilt is reasonably probable.

This inevitably raises the question: what can be done to hold prosecutors accountable when they engage in unlawful and/or unethical conduct that does not result in reversal of conviction? The answer, quite simply, is not much. As University of Arizona College of Law Professor, Ted Schneyer, wrote in a 1996 Fordham Law Review article, “[T]he ABA writes ethics codes and state supreme courts give them legal effect.”

At the outset, it must be noted that the Supreme Court, in Imbler v. Pachtman, held that prosecutors enjoy “absolute immunity” for any misconduct related to their “prosecutorial function.” Imbler was decided in 1976, three months before Agurs and two months after Moore. And the Supreme Court earlier this year, 2011, in Connick v. Thompson, held that the municipality for which prosecutors are employed cannot be held liable for monetary damages for unlawful or unethical conduct by prosecutors absent a showing that the prosecutorial misconduct was engaged in pursuant to an “official municipality policy,” which requires a showing that municipality lawmakers, such as a district attorney’s office, engaged in wrongful decision-making practices so “persistent and widespread as to practically have the force of law.” That’s an impossible nut to crack.

As Ms. Kurcias put it, “while the Supreme Court requires prosecutors to disclose certain evidence to the defense, consequences for withholding such evidence do not exist in the criminal justice system. In fact, the Supreme Court has granted prosecutors absolute immunity from civil liability for failure to disclose exculpatory evidence. Thus, prosecutors do not fear being sued for withholding evidence and the Brady Rule is consequently weakened. As one commentator stated, ‘[i]sofar as federal law is concerned, we have no reason at all to believe, under these consequences, that prosecutors will not continue to ignore their constitutional obligation under Brady. Consequently, encouragement for prosecutors to adhere to this requirement must be found elsewhere. Ideally, the ethics rules would supply this incentive.’”

But, given the historical resistance of state bar associations to imposing disciplinary sanctions on rogue prosecutors who engage in Brady misconduct, even when they are “repeat offenders, this incentive is weak. Insulated from civil liability with absolute immunity and facing reversal of conviction only in cases where guilt is not compelling, prosecutors have been granted by the Supreme Court and state bar disciplinary committees a license to engage in unlawful and unethical misconduct with virtual impunity. This was evidenced by an article in the Washington & Lee Law Review by University of Utah Law Professor Daniel S. Medwed who referenced a 1999 study of Illinois state criminal convictions reversed as a result of prosecutorial misconduct. Of the 326 reversals, only two prosecutors were subject to disciplinary sanctions and a third was dismissed from the State Attorney’s Office. Likewise, other prominent legal scholars, such as renowned Professor of Legal Ethics Fred Zacharies, have written that “the body of cases [involving disciplinary sanctions] is not entirely negligible.”

The New York-based Innocence Project says some of the 280 DNA exonerations in this country involved prosecutorial misconduct. The project’s executive directors, Barry Scheck and Peter Neufeld, conducted a study of the first 74 DNA-based exonerations and found that 37 percent involved suppression of exculpatory evidence, 25 percent involved the knowing use of false testimony, and 11 percent involved the use of coerced testimony.

Professor Medwed also had this to say about the lack of disciplinary sanctions in these kinds of cases: “… disciplinary bodies hardly ever sanction prosecutors who disregard Brady’s precepts. Two decades ago, Richard Rosen studied written disciplinary decisions nationwide and dug up only nine cases in which a prosecutor had ever been referred to the ethics board for suppressing exculpatory evidence. Just one of those nine disciplinary proceedings ended with a sanction, and merely a suspension at that. Rosen’s research methodology included a survey sent to disciplinary representatives in every state. Thirty-five of the forty-one states that responded to the query indicated that no formal complaints had ever been filed alleging Brady-type misconduct.

“Joseph Weeks followed up on Rosen’s research ten years later and discovered a similar pattern. Weeks found seven cases where prosecutors had been referred to disciplinary bodies for purported Brady violations. Four of these referrals resulted in sanctions, the most severe of which was a six-month suspension. These findings about the paucity of discipline imposed on prosecutors for Brady violations, even the rarity of allegations themselves, are startling. Nothing suggests things have changed much in recent years. On the contrary, data produced by groups across the country suggest that disciplinary agencies stand idly by as the tide of Brady violations, if not rising, continues unabated.”

Two years before the results of Rosen’s study was released, an en banc panel of the Texas Court of Criminal Appeals in Ex Parte Adams, found that Dallas’ First Assistant District Attorney Doug Mulder had suppressed favorable evidence, knowingly used perjured testimony, and deceiving the trial court during the defendant’s capital murder trial. The defendant, Randall Dale Adams, whose wrongful conviction for the murder of a Dallas police officer became known through the nationally acclaimed documentary A Thin Blue Line, spent twelve years under a death sentence before his conviction was set aside. Mulder, whose misconduct was clearly detailed by the Court of Criminal Appeals, never faced any disciplinary action for sending an innocent man to death row—a man who came within 72 hours of execution.

In Banks v. Dretke the Supreme Court confronted yet another Texas case involving a Brady violation. Delma Banks, then twenty-one years of age, was put to trial in September 1980 in Bowie County for the murder of a 16-year-old teenager. He was convicted of capital murder and sentenced to death. Banks was strapped to the gurney in the state’s death chamber before receiving a stay from the Supreme Court just 10 minutes before the lethal cocktail was to be administered. Banks’ conviction was based primarily on two key witnesses; and as the Supreme Court pointed out in its 2004 decision, “the State withheld evidence that would have allowed Banks to discredit [these] two essential prosecution witnesses. The State did not disclose that one of those witnesses was a paid police informant, nor did it disclose a pretrial transcript that the other witness’ trial testimony had been intensively coached.” In fact, the prosecutor told the jury that the coached witness had “brought you absolute truth.”

Writing for the majority opinion, Justice Ruth Bader Ginsburg was particularly critical of the arguments State attorneys made before the Court: “The State here nevertheless urges, in effect, that ‘the prosecution can lie and conceal and the prisoner still has the burden to … discover the evidence,’ so long as the ‘potential existence’ of a prosecutorial misconduct claim have been detected. A constitutional rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process. ‘Ordinarily, we presume that public officials have properly discharged their official duties.’ We have several times underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials. Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper methods to secure a conviction] … plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.’ Prosecutors’ dishonest conduct and unwarranted concealment should attract no judicial approbation.”

Clearly, some Texas prosecutors, like those California prosecutors who argued before the Supreme Court in Mooney, believe that “absolute immunity” and “harmless error” are not enough. They want the Supreme Court to grant them an unfettered license to “lie and conceal,” even when it means potentially innocent defendants will be executed or spend the rest of their lives in prison. As we discussed in two previous posts (here and here), that almost happened to Michael Morton who was wrongly convicted and sentenced to life imprisonment for the 1986 murder of his wife. Two Williamson County, Texas, prosecutors, Ken Anderson and Mike Davis, withheld material evidence that would have, at a minimum, surely resulted in a not guilty verdict. And to make matters even worse, current Williamson County District Attorney John Bradley fought for six years to prevent a key piece of evidence from being DNA tested—and when the evidence was eventually tested, it not only exonerated Morton but identified the real killer.

The Texas Court of Criminal Appeals officially declared Morton “innocent” this past October while the Texas State Bar announced it had launched an “investigation” into the conduct of all the prosecutors involved in the case. In the heat of the Morton controversy in October, the Texas Tribune reported on the issue of whether current state discovery laws should be expanded:

“Prosecutors, though, have not been the only ones to object to expanding discovery, said Rob Keppel, executive director of the Texas District and County Attorneys Association. Defense lawyers, he said, have objected to legislation that would also require them to turn over evidence to prosecutors.

“What is more, Keppel said, a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.

“’If somebody didn’t play fair back then,’ he said, ‘I’m not sure exactly what law we change would address it.’”

But the real issue is not sharing evidence—the real issue is whether, as Justice Ginsburg noted, prosecutors should be allowed to “lie and conceal.” Many Texas district attorneys have an “open file” office policy which is not required under Moore. Still, that does not insure prosecutors have not lied or concealed material favorable evidence. There is a reasonable solution to the “lie and conceal” prosecutorial tactics. It was expressed by Grits for Breakfast, and we share his point of view:

“In this writer’s view, the best, simplest fix would be to eliminate ‘absolute immunity’ for prosecutors. While Texas legislators can’t overrule federal decisions (‘absolute immunity’ exists in no statute but is a judicial creation from the U.S. Supreme Court), the Lege would have to create its own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last sessions which would do just that in reaction to the Anthony Graves case …

“There was a committee substitute offered on that bill that would have given prosecutors ‘qualified immunity,’ which is the same as for police officers, instead of eliminating immunity entirely. Personally I’d prefer to no immunity – the same standard under which defense attorneys operate. Cops’ get qualified immunity – which still protects them from virtually all civil liability – because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn’t be held liable in civil court for egregious, intentional misconduct and there is no ‘free-standing’ due process right not to be framed.”

On November 11, 2011 the Dallas Morning News editorialized against “rogue prosecutors” in Texas. Besides the Michael Morton travesty, the newspaper cited the following cases in which individuals were wrongfully convicted by such prosecutors: (1) Anthony Graves, who was framed by Burleson County prosecutors, spent 18 years in prison, including death row, before being officially exonerated last year and awarded $1.4 million as compensation for the “bogus murder conviction;” (2) Dale Lincoln Duke, now 60, was released in Dallas County on November 4, 2011 after spending 14 years in prison on child abuse charges because prosecutors withheld evidence that the child’s grandmother thought the girl was lying. Duke was released after a state trial judge declared his conviction “unjust;” and (3) Chelsea Richardson, 27, was released from death row after a November 1, 2011 appeals court decision found prosecutors had withheld evidence that a different defendant may have been the “mastermind” in the murder of her parents–prosecutors had secured a death sentence by portraying Richardson as the “mastermind” behind the double murder—and she will now be sentenced to life imprisonment, just as her boyfriend was.

Don’t get us wrong. There are states with just as disgraceful history as Texas when it comes to Brady violations. For example, Ken Armstrong and Maurice Possley, writing in the Chicago Tribune in January 1999, produced an investigative piece titled “The Verdict: Dishonor.” Their study examined 67 death row cases granted new trials because of Brady violations. The reporters found that 24 of the condemned inmates were freed because charges were dismissed, or they were acquitted, or granted full pardons. Three pled guilty in exchange for sentences that freed them immediately while five others were re-convicted but received sentences less than death. Only four of the 67 were re-sentenced to death.

These case examples of Brady violations underscore what is no longer an anomaly but is fast becoming a norm in our criminal justice system: prosecutorial misconduct. It has become the single worse shame and disgrace in our system of justice: the “ministers of justice” charged with seeking and honoring the truth arguing that they enjoy the right to “lie and conceal” in pursuit of criminal convictions. Professor Bennett L. Gersham, writing in the South Texas Law Review, summed up this disturbing problem as follows:

“Making prosecutors accountable for violations of Brady has not been a success. To be sure, bar associations and grievance committees have the power to discipline prosecutors for violations of ethical rules. However, most commentators agree that professional discipline of prosecutors is extremely rare. The absence of significant discipline of prosecutors is particularly noteworthy in cases in which prosecutors intentionally suppress evidence that leads to a reversal of a defendant’s conviction and a stinging rebuke by a court of the prosecutor’s misconduct. Although one would realistically expect disciplinary agencies to proceed aggressively against such unscrupulous conduct, such is not the case. Moreover, of all the ethical rules relating to the conduct of a prosecutor, the ethical rule governing a prosecutor’s suppression of evidence is the most explicit and easiest to enforce. However, when faced with this ‘most dangerous conduct,’ disciplinary bodies typically look the other way.”

By either failing or refusing to impose disciplinary sanctions on rogue prosecutors, especially those who send innocent persons to death row, disciplinary agencies have become complicit in this increasing pattern of unethical conduct and criminal wrongdoing by prosecutors. The time has come for that to change…

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization