02/21/2012 06:34 pm ET Updated Apr 22, 2012

Texas Court of Inquiry Into Prosecutorial Misconduct Is Big News

In Texas, something unusual is happening. A special investigation, headed by a judge, has been convened to decide whether former prosecutor Ken Anders, who is now a judge, hid evidence in a trial in which William Morton was wrongly convicted of his wife's murder and sent to prison for almost twenty-five years.

This court of inquiry will look into whether Mr. Anderson as the prosecutor in the case failed to turn over all documents that would have supported the defense of Mr. Morton. It also will determine whether Mr. Anderson tampered with evidence and court records, according to an order signed by the chief justice, Wallace Jefferson. Mr. Morton was freed in October after new DNA testing showed he did not kill his wife, Christine, who was beaten to death in 1986. His lawyers said Mr. Anderson, the case's lead prosecutor, kept crucial facts from the defense, including statements from the couple's then-3-year-old son that he witnessed the murder and that his father was not responsible, and the fact that Ms. Morton's credit card was used after her death.

The United States Supreme Court made a decision called Brady v. Maryland, nearly fifty years go, which says that the prosecution is required to turn over to the defense any evidence which might prove a defendant innocent, guilty of a lesser offense or serving of a lesser penalty. What is news about what is happening in Texas is not that there appears to have been substantial due process violations leading to the wrongful conviction and imprisonment of Mr. Morton. There are unfortunately far too many violations like these.

Indeed, the United States Supreme Court has had to reverse another case like this in this very term in Smith v. Cain, the Court reversed (8-1) the murder conviction of Juan Smith because the New Orleans District Attorney's Office had withheld critical evidence that would have been favorable to Smith at his trial. Smith had been convicted of murder in the course of an armed robbery based on the sole eyewitness testimony of Larry Boatner. There was no DNA, fingerprints, or other physical evidence that linked Smith to the 1995 crime. Appellate attorneys later learned that prosecutors failed to disclose reports of initial interviews with Boatner in which he said he could not describe the intruders and had not seen their faces.

Most state courts have discovery rules which require the state to divulge anything exculpatory, the United States Supreme Court has said this is a matter of due process, so why is it that these offenses whether intentional as alleged in Mr. Alexander's case, or inadvertent (for example when a police officer fails to tell the prosecutor about an exculpatory witness). The courts have held that law enforcement is responsible for this information being told to the defense, no matter who actually knew it.

In fact violations of this sort are brought up hundreds of times each year by the defense, and if proved and shown to have been prejudicial, result in reversals of convictions. Why do they happen though? I am sure that these claims are raised inappropriately from time to time, but they are raised so often, that it appears to be a pervasive problem.

Prosecutors have a difficult job. We ask them to do justice, to represent the people of the state or the federal government, and we also ask them to win convictions. We elect state prosecutors in most jurisdictions, and they run on their conviction rates, not on their reasonable doubt rates. The urge to win is a strong one, and the desire to see justice done, which is to convict the person who has been arrested, and to simply not see the other side is something that is easy to understand. So the line gets crossed for the most honorable of intentions; to get the "bad guy".

A Chicago Tribune series on the subject of prosecutorial misconduct of this sort and others was published over ten years ago. It found hundreds of examples and tellingly no consequences for reversals to individual prosecutors. In fact, when there is such a reversal, the prosecutor is not personally named in the court opinion, therefore shielding him or her form public acknowledgement of the misconduct found by the court, and usually from any consequences by the bar association.

As the United States Supreme Court said 75 years ago:

[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78 (1935).

The reason this court of inquiry is news is that perhaps by taking some action, the Texas Courts are signaling a change in attitude on the part of courts which wish to avoid needless reversals and new trials, the disapprobation of prosecutors by the public and the conviction and perhaps execution of the innocent. I certainly hope so.