When Prosecutors Ignore the Constitution

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Michael Morton was exonerated in 2011 after spending more than 24 years in prison for murdering his wife, Christine, in their Texas home. She was bludgeoned to death after he left for work one summer day in 1986, and found in their bed.

The evidence which eventually exonerated him— a bloody bandanna with another man’s DNA on it—was not the only thing that pointed to another culprit, according to the Innocence Project.

Morton’s young son, who was present during the murder, had also said that a “monster”— not his father—carried out the crime, and police investigating the murder were told by a neighbor about a man parked in a green van behind the Morton house. There was also evidence indicating that someone had possibly tried to use Ms. Morton’s credit in a jewelry store.

The trial judge in the case, at the request of the defense, had ordered the prosecutor to turn over all reports by the case’s lead investigator, who was not called as a witness. The prosecutor did not comply. That refusal earned him a five-day jail term years afterward.  By then, the prosecutor, Ken Anderson—named by the State Bar of Texas as “Prosecutor of the Year” in 1995—was a judge.  The case led to a wave of criminal justice reforms in the state.

And it was one of many similar ones around the country that have led to a rethink of trial procedures.

Last month, New York State Chief Judge Janet DiFiore threw her support behind a recommendation by the New York State Justice Task Force, urging judges to issue similar orders reminding prosecutors of their obligations to turn over evidence at the outset of all criminal trials.

DiFiore called it a “groundbreaking” recommendation. And advocates of court reform hope it paves the way for similar procedural changes in other states as well.

“Will this decrease wrongful convictions? Absolutely,” Innocence Project Co-Director Barry Scheck, told The Crime Report.

The Innocence Project was among the groups that lobbied for the recommendation, with the Morton case in mind.

The model order drawn up by the Justice Task Force reminds prosecutors of both their Constitutional and ethical obligations. Noting that “the district attorney and the assistant responsible for [a] case have a duty to learn of such favorable information that is known to others acting on the government’s behalf in the case, including the police,” it recommends that they  “confer with investigative and prosecutorial personnel” and review “files directly related to the prosecution or investigation of this case.”

It also spells out what “timely” means: No later than 30 days before the start of a felony trial, and 15 days prior to a misdemeanor trial. And it specifies what the disclosed information should include: benefits and promises made to witnesses for their cooperation, prior inconsistent statements and uncharged criminal conduct or convictions, and information regarding a witness’s mental or physical illness or substance abuse.

Scheck said the power of the recommendation comes from two of its aspects.

First, it will ensure that investigatory files other than the prosecutor’s files are searched for favorable information, making it a “prophylactic rule that will prevent Brady violations.”

Second, the fact that these reminders come as orders means that prosecutors who willfully violate them can be held in contempt, which will change the culture around disclosure.

Scheck called it “a cognitive science problem,” in which having judges talk about what should be disclosed before trial will lead attorneys to think more closely about it.

As for consequences faced by prosecutors who fail to turn over information, he said, “We’re only interested in people who the court ultimately believes are deliberately breaking the rules, and I don’t think there’s that many of them.”

That’s one reason why Barry Pollack, President of the National Association of Criminal Defense Lawyers, says the recommendation could be stronger.

Although he conceded that the order would offer a sanction with “real teeth,” he pointed out that the punishment would only apply to a small number of cases.

“I think that the proposed order is geared toward intentional violations,” he said. “But I think that intentional violations, while they occur, are exceptions, not the rule.”

Pollack also believes the order should be mandatory.

Even in its present form however, the recommendation could have an impact on prosecutorial behavior, said Pollack.

It underlines that that prosecutors should not be asking themselves, pretrial, “what’s the most I can fail to turn over and not get reversed on appeal,” but rather, what information points to innocence.

“I think other states will most definitely take notice and you could well see other states following New York’s lead,” Pollack said.  “I think that is a good thing and a healthy thing. I just don’t think it goes far enough.”

Bill Fitzpatrick, Onondaga County (NY) District Attorney and Chairman of the Board for the National District Attorneys Association, said his organization does not oppose the adopted recommendation, but believes it is “superfluous.”

Kate Pastor is a Bronx, NY-based freelance journalist. She welcomes comments from readers.





One thought on “When Prosecutors Ignore the Constitution

  1. Can the judge that is listed as the prosecutor also be the judge at you bond hearing? Can you be convicted of a crime and sentenced to jail, have it updated it NCIC, but never even know about it? If that happens, what can a person do about it. If your lawyer does not know about it, how can you find out?

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