Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.

Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.

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Texas has had more than its share of tragic wrongful convictions. Of the more than 40 people exonerated by DNA in Texas, one of the most heartbreaking cases is that of Timothy Cole. Cole was wrongly convicted in 1986 for a Lubbock rape. DNA testing conclusively exonerated him last year and identified the true perpetrator. But the exoneration came too late. In 1999, Cole died in prison of a severe asthma attack, an innocent man.

So far, Texas has been slow to respond to the long list of mistakes that exist in each of these wrongful convictions. These mistakes have forced innocent people to spend over 500 years in prison for crimes they did not commit. But that may be about to change. Last May, the Texas Legislature approved a bill creating the Timothy Cole Advisory Panel on Wrongful Convictions, and directing the Texas Task Force on Indigent Defense to work with the panel on a report on needed reforms to prevent wrongful convictions. The Cole Panel's inaugural meeting is slated for today.

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Two more innocent men have been freed from death row. Just last week, Yancy Douglas and Paris Powell became the 137th and 138th people to be exonerated from death row.  The two men were convicted of a drive-by shooting in 1993 based on the testimony of an in-custody informant who had been offered leniency from the prosecution. The prosecutors at trial withheld information about this plea-deal from the defense, which resulted in a new trial. All charges against the two men have now been dropped because of the unreliability of the in-custody informant's testimony, the only evidence that linked Douglas and Powell to the crime.

These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or "jailhouse snitches" as they are often referred, is a leading cause of wrongful convictions.

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Last week, Texas Governor Rick Perry removed three members from the Texas Forensic Science Commission. The changes come at a critical juncture in the investigation of the flawed forensics behind the conviction of Cameron Willingham, who was executed in 2004 for allegedly setting the fire that killed his three daughters.  

 

Governor Perry's removal of these three members from this commission has drawn national attention and sharp criticism because there is concern that his appointed replacement of the commission chair, John Bradley, may slow or stifle the investigation. Bradley has already cancelled a scheduled meeting on October 2, where the commission's retained fire expert, Craig Beyler, was to present and discuss his report. Beyler's report, released to the media under public information laws, confirms findings from three other expert reviews: that the arson evidence in the Willingham case was without scientific validity.

 

The canceled meeting is not the only casualty of this drastic change. Commission members have also decided to postpone a series of important roundtable discussions focused on a recent report of the National Academies of Science (NAS) about serious weaknesses in the nation's forensic systems because of the distractions caused by the shakeup.

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Twenty innocent men spent almost 170 years in prison in Georgia for crimes they did not commit. What does eight years mean to you? For these twenty innocent Georgians, eight years is the average length of time each spent behind bars for a crime they did not commit. Just as it is true in exonerations nationwide, mistaken eyewitness identification is the leading cause of Georgia's wrongful convictions.

Clearly, mistaken eyewitness identification is problem in Georgia. Eyewitness evidence, much like physical evidence, is highly subject to contamination and must be collected carefully according to scientific protocols. Without clear, written policies and procedures that instruct law enforcement agencies on the best practices for photo and live lineups, mistakes will continue to be made. And lives will continue to be destroyed.

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Last week, the San Jose Mercury News reported that Jeffrey Rodriguez, a man from San Jose who spent five years in prison for a crime he did not commit, was awarded a $1 million settlement from Santa Clara County for his wrongful conviction. Jeffrey's wrongful conviction and his subsequent settlement is not a unique story in Santa Clara: since 2005 the county has paid more than $4.6 million in settlements for wrongful convictions by the District Attorney's office. Nor is Jeffrey's story unique to the state of California. Earlier this month a Louisiana circuit court of appeals upheld a $14 million jury settlement against the Orleans Parish DA for misconduct resulting in the wrongful conviction and death sentence of John Thompson.

 

Like clockwork, wrongful convictions continue to occur at the hands of a system that is prone to error. In addition to the unconscionable act of incarcerating a person for years for a crime they did not commit, wrongful convictions impose an enormous financial burden on taxpayers. Year after year, month after month, the criminal justice system must pay for its mistakes.

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Another innocent man is free in Texas. Ernest Sonnier was released from custody on Friday after DNA testing implicated two different men in the 1986 rape for which Sonnier was convicted. Sonnier has spent twenty-three years in prison, always maintaining his innocence.

 

The release of Ernest Sonnier is just the latest case that highlights the ongoing problem of wrongful convictions in Texas. In May, Jerry Lee Evans was freed after DNA testing proved another man committed the crime. He spent twenty-two years in prison. And in March, The Justice Project published Convicting the Innocent: Texas Justice Derailed, which highlights thirty-nine other cases of wrongful conviction in Texas.

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One of the most troubling trends that foster prosecutorial misconduct is the failure of state bar and disciplinary agencies to take action against prosecutors who violate their ethical obligations.

 

Earlier this year, Attorney General Eric Holder and the Department of Justice (DOJ) took swift and almost unprecedented action after uncovering egregious prosecutorial misconduct in the case against Alaska Senator Ted Stevens. Holder promptly dismissed all charges against the Senator, and federal judge Emmet Sullivan ordered an independent, criminal investigation of the prosecutors responsible for intentionally failing to turn over important, exculpatory evidence to the defense. The DOJ has also promised an investigation through the Office of Professional Responsibility. The question now is whether these particular prosecutors will ever be held accountable.

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Why would anyone confess to a crime they did not commit? What would it take to get you to confess to a crime? For Christopher Ochoa, it took twenty hours of questioning and badgering and threats to get him to falsely confess to the murder of a woman in Austin, Texas. As a result, he spent twelve years in prison for a crime he did not commit.

Most people find it hard to understand how anyone could ever confess to a crime they did not commit. But it happens over and over again. False confessions are a well-documented reality, especially among vulnerable populations like juveniles and the mentally-impaired. Of all the DNA exonerations nationwide, false confessions occur in over 20 percent of them.

Last week, two major newspapers highlighted two different cases where the confessions of the defendants had been called into question.

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George Rodriguez is seeking justice. In 2004, DNA testing exonerated Rodriguez for the 1987 abduction and sexual assault he had been convicted of seventeen years earlier. During his trial, a Houston Police forensic analyst testified that biological evidence pointed to Rodriguez's guilt; it was later discovered that the analyst lied. Rodriguez is one of forty individuals exonerated by DNA in Texas, and one of six exonerated in Harris County. Read more about DNA exonerations in Texas.

A trial is now underway in Rodriguez's civil lawsuit against the City of Houston, and the city is claiming that there was nothing it could have done to prevent the misconduct of their lab analyst, whose lie led to Rodriguez's wrongful conviction. Houston city attorney Arturo Michel stated:

"I think what you have here is a person who was simply not honest and it doesn't matter how many funds you put into something, how good a program you have, that cannot guard against a person's dishonesty."

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The continued lack of standard policies in the states for post-conviction DNA testing is troubling. It is time for states to act. With so many exonerations across the country proving that our criminal justice system is broken, post-conviction DNA testing offers the unique opportunity to correct mistakes and help make our criminal justice system more fair and reliable. Public safety is served when the correct person is held responsible for his or her crimes. Post-conviction DNA testing helps boost the public's confidence in the accuracy and reliability of the criminal justice system. Yet, few states have adopted standards and prosecutors often fight to deny access to such testing.

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Last night, as the Texas House of Representatives hit the deadline to consider Senate bills, the state lost the opportunity to act on a host of important legislative initiatives, including several significant criminal justice reform bills. A partisan meltdown over a bill requiring photo identification for voters led to parliamentary maneuvering and delay. SB 116 and SB 117 would have demonstrated Texas's increasing commitment to a more fair and accurate criminal justice system. Instead, these bills now represent two missed opportunities for justice in Texas.

SB 116 states that, when practical, police should electronically record custodial interrogations in their entirety from the Miranda warnings forward. The Justice Project's policy review on recording interrogations highlights the use of electronic recording as a vital tool to help protect the innocent as well as convict the guilty. If passed, SB 116 would have put the legislature on record in support of this important policy, and provided leverage for pushing police departments to implement recording policies.

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Prosecutors are rarely held accountable for acts of misconduct or abuses of power in our country. Yet another example of this reality comes from a case out of Florida, where prosecutors engaged in egregious, intentional courtroom misconduct throughout the trial.  The Third Circuit Court of Appeals ultimately upheld the conviction in the case because they found that the misconduct did not affect the outcome of the trial.

The law provides judges with tools that guide them to weigh prosecutorial misconduct against the facts of a case to determine whether the misconduct was severe enough to affect the outcome of the trial. Regardless of what appellate courts decide (i.e., to uphold the conviction or remand it for retrial), the simple truth is that misconduct has occurred. Unfortunately, the system does not provide judges with tools to guide them on how to address acts of prosecutorial misconduct. While defense attorneys, fellow prosecutors, and judges are ethically obligated to report acts of misconduct by prosecutors to the proper disciplinary authority, this reporting rarely happens. When prosecutors do face disciplinary proceedings, meaningful sanctions are uncommon and rarely go further than a public censure.

As a result, prosecutors can predict how much misconduct will be tolerated by the system before a case even goes to trial. As long as the misconduct doesn't prejudice the outcome of a trial to the point that a conviction is reversed, the misconduct will slip through the cracks and the prosecutor will not face any consequences.

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Prosecutors have power. They have been given that power in part to effectively ensure public safety. Yet, everyday in courtrooms across the country, prosecutors are abusing their broad powers and engaging in misconduct that can and does lead to flawed verdicts and the conviction of innocent people. It is a severe problem--it is a widespread problem. Our criminal justice system can and should do better.

Arguably the most powerful figures in the criminal justice system, prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The responsibility of a prosecutor is not to simply seek convictions, but to seek justice. This means that, in addition to convicting the guilty, the prosecutor has a duty to protect the innocent and guard the rights of the accused. Yet within our criminal justice system there is a lack of transparency and accountability which has allowed prosecutorial abuse of power and misconduct to become common place.

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This week, U.S. Attorney General Eric Holder dismissed the case against former Senator Ted Stevens of Alaska. Citing prosecutorial misconduct as the primary reason, the Justice Department determined that the fairness of the trial had been too damaged by government misconduct to proceed further. Holder stated that, "[a]fter careful review, I have concluded that certain information should have been provided to the defense for use at trial," and that "it is in the interest of justice to dismiss the indictment and not proceed with a new trial." Holder's decision represents a critical first step in addressing a growing nationwide problem of prosecutors abusing their power in order to secure convictions.

The Stevens case had been marred by prosecutorial misconduct from the outset.  Judge Emmett Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the defense. In addition, prosecutorial misconduct at trial led Judge Sullivan to hold one of the prosecutors in contempt, and at one point instruct the jury to disregard some evidence presented by the prosecution. Delays in the case persisted in order to allow the court to deal with additional allegations of misconduct. In February, after replacing the original trial team, new prosecutors discovered even more evidence that should have been turned over to the defense. That prompted Holder to dismiss the charges against Stevens and order an internal review of the offending prosecutors.

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