Accounting for Bad Prosecutors

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James Doyle

Early this month, a Texas judge recommended that the Texas Supreme Court convene an unprecedented court of inquiry to investigate whether former Williamson County prosecutor Ken Anderson (now a district judge) violated laws or ethical canons by hiding evidence from the defense lawyers for Michael Morton, who was exonerated by DNA evidence after serving 25 years for the 1986 murder of his wife, Christine.

Morton’s current lawyers charge Anderson with concealing a slew of evidence which supported Morton’s claim that his wife was murdered by an intruder: evidence that included the statements of neighbors who had seen a man in a van parked outside the Morton home and the story of the murder told by the Mortons’ three year old son, who said he had watched “a monster” (not his father) kill his mother.

Coming on the heels of the United States Supreme Court’s scathing reviews of similar prosecutorial practices in two New Orleans cases, the call for a court of inquiry added momentum to growing national efforts to force prosecutors who bury proof of innocence to face criminal or professional disciplinary consequences.

Prosecutors enjoy broad immunity from civil liability. Advocates argue that cases like Morton’s prove that some prosecutors abuse that protection. They insist that someone has to hold these guys accountable.

So, let’s start with Anderson.

If the allegations against Ken Anderson are true, he broke the rules and sent an innocent man to prison for 25 years. That’s bad enough; but by railroading Morton Anderson also helped the real murderer to escape and to kill again. (The man whose DNA was found at the Morton murder scene, exonerating Morton, is implicated by DNA in the 1988 murder of Debra Baker).

No one should lose any sleep if Anderson is disbarred or carted off in handcuffs.

But if whacking the occasional Ken Anderson is all we do, then we haven’t done enough. The criminal justice system can’t heal itself by chasing down and punishing one bad apple—or twenty bad apples.

We do need accountability. But we need a “forward looking accountability” that balances demands for individual responsibility with the need for learning and improvement.

We lack a vehicle for accounting for tragic outcomes like that of the Morton case, which allows for working on continuous quality improvement—a means for anticipating and preventing the next catastrophe before it happens.

Wrongful convictions like Morton’s don’t happen just because a single bad apple like Anderson is in play.

Wrongful convictions are systems errors: organizational accidents, like the Challenger launch decision or the Chernobyl meltdown. They result from many small mistakes combining with each other and with latent system weaknesses to create a tragedy.

They can never be fully explained by the failure of one component or a lone operator. The right answer to the question “who was responsible for this wrongful conviction?” is usually “everyone involved to one degree or another,” either by making an error or by failing to catch one.

The flagrant choices of a rogue prosecutor like Anderson mask this fact, but they don’t change it.

Did Anderson bury the police reports of the neighbors’ interviews describing a stalker? Even if a court of inquiry determines that he did, we are still left with the fact that the defense didn’t successfully interview the same neighbors.

Why not? Was it a training issue? A funding issue? A performance issue? Were the witnesses told to refuse interviews? Did the police know that their investigation had been edited by the prosecutor? Did they approve? Did they feel authorized to say anything?

Had the local judges shown a willingness to look the other way when prosecutors withheld disclosures?

And we are left with another fact. Anderson’s grotesque choices—so obviously wrong in hindsight—looked for some reason like good choices to Anderson at the time. We have to try to understand why.

If the conditions that convinced Anderson that hiding exculpatory material was a good choice still exist, the same calculations Anderson made (maybe adjusted ever so slightly to allow for the miniscule prospect of being punished if you are as careless about covering your tracks as Anderson was) will face the next prosecutor who comes along.

The temptation to do the same thing will remain: just try to do it more stealthily.

Sometimes failing to disclose evidence favorable to a defendant is a crime; more often it is a mistake.

Anderson’s case may turn out to fall on the criminal side of the line but most cases probably don’t. The question is how to eliminate as many mistakes as we can.

Prosecutors don’t bury evidence so that they can convict defendants they know are innocent; they bury evidence to hamstring the defenders’ ability to generate themes that will distract the jurors in the trials of defendants the prosecutors believe are guilty.

These prosecutors know that the rule of Brady v. Maryland might require disclosure, but—like many workers in many industries—they have developed a set of “covert work rules” that allow them to get on with the “real” job they believed has been assigned to them, thereby escaping the handicaps that following the formal rules would impose.

They deviate from the strict rules and make a small local accommodation. They’ve done it before, and they saw nothing bad happen. So they drew the erroneous conclusion that nothing will go wrong if they do it again. The deviation becomes the new normal.

But from this perspective, implausible evidence (“I saw a spaceship over the Mortons’ house”) isn’t worth burying; only the plausible evidence (“I saw a stalker in a van”) is a potential distraction.

The problem is that there’s some imperfect correlation between the plausible evidence and the truth, and in some cases like Morton’s when the plausible is suppressed it will be the truth that suffers.

When medicine was forced to confront a rash of treatment-caused patient deaths in the 1990’s, pioneering medical reformers like Dr. Donald Berwick quickly realized that the hunt for the bad apples is a futile, even dangerous, response to the problem.

It drives underground reports of mistakes that you should treasure as learning vehicles. It feeds the illusion that exorcising the last practitioner changes the situation confronting the next practitioner and protects an already safe system.

The patient safety movement chose another direction: it mobilized a cultural shift in teaching hospitals toward the development of a routine, non-blaming, all-stakeholders effort to analyze errors with all of their complexities and shared responsibilities and to disseminate the results.

Criminal justice can do the same.

Nothing will completely replace the need to discipline conscious wrong-doers, but following the trail medicine blazed will complement the disciplinary processes and encourage the practitioner to report errors and near misses that can be our early warning system against future risks.

Voltaire once witnessed the execution of a British admiral charged with cowardice for avoiding a battle. Horrified, Voltaire objected that since the battle was avoided either no one was guilty of cowardice or everyone involved was equally guilty. His British guide agreed with Voltaire’s analysis, but he wasn’t horrified by the execution. It was the settled custom in the British Navy, he explained, to execute an admiral now and then “to encourage the others

That wasn’t a good answer then, and it isn’t a good answer now. Whacking a few prosecutors “to encourage the others” doesn’t work. Or at least it works a lot better if we also concentrate on understanding and repairing the system we all work in.

James Doyle is a Boston attorney and the author of True Witness: Cops, Courts, Science and the Battle Against Misidentification (Palgrave 2005) a history of the clash between eyewitness science and legal traditions. He is a 2012 Visiting Fellow at the National Institute of Justice. The opinions expressed here are his own. He welcomes comments from readers.

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