The Innocence Project, a national public policy firm known for using DNA to exonerate convicted criminals, released a report finding that Texas courts have ignored prosecutorial misconduct 91 times since 2004.
The report was first discussed at a University of Texas symposium on the criminal justice system. Research was conducted by the Veritas Initiative, which reviewed all of the published trial and appellate court decisions addressing prosecutorial misconduct between 2004 and 2008. Veritas followed up by studying Texas’s public attorney disciplinary records from 2004 to November 2011 to determine whether the prosecutors ever faced consequences for misconduct. The findings are enough to shake the confidence of even the most cynical criminal defense attorney.
Only one prosecutor was disciplined for misconduct during those seven years — for an offense committed before 2004. Of the types of misconduct found, improper examination and improper argument were the main types of error. However, few of these resulted in a court reversing the conviction. In fact, out of 36 examples of improper argument, and 35 examples of improper examination, just three were reversed in each case. Texas courts were most likely to reverse cases where prosecutors failed to turn over Brady evidence — that is, evidence fundamental to determining a suspect’s guilt or innocence — in violation of the suspect’s constitutional rights. This occurred eight times, resulting in seven reversals. Of the types of cases most likely to have misconduct, murder cases (28% of the cases) and sex crimes (24% of the cases) led the way.
Though the findings are grim, there are a few caveats. First, nearly all of the errors were from cases that went to trial — accounting for exactly 3% of Texas criminal cases. Among the cases where misconduct was raised, the Texas courts did not always address them directly. Second, several Texas court opinions are not in writing, and those that are in writing may not have been published. Finally, the courts’ distinction between errors that are “harmful “and “harmless ” does not give a clear picture of how serious the misconduct was– just that the court found that it would not have affected the trial’s ultimate outcome.
That said, any prosecutorial misconduct is serious, regardless of its effect on the jury’s verdict. The study noted that few Texas DA’s offices have any system at all for preventing major misconduct. Even when bar associations are informed, they often fail to provide necessary discipline. Hopefully the Innocence Project study will be a first step toward focusing the Organized Bar’s attention on this serious matter.
Whether the misconduct occurs in murder cases or drug and white collar crime cases, it puts the integrity of the entire criminal justice system at risk. Criminal law isn’t just one side going against the other. Oftentimes, both sides will cooperate through plea bargains and other means. What is more, the act of depriving someone of his or her freedom — even of his or her life — is so significant that the system needs to ensure that every precaution is taken. That is why even poor criminal defendants are given attorneys, and why the standard of conviction is higher than a civil case — beyond a reasonable doubt. While the misconduct may not be the norm, or may be incidental within the context of the case, it is still a problem that requires a real system-wide effort to resolve.