What You Don't Know About Prosecutorial Oversight: Our Chat with Attorney Betty Blackwell

Michael Morton, free after 25 years of wrongful imprisonment for his wife's murder, spoke about his experience yesterday during a panel discussion on prosecutorial oversight at the University of Texas. Morton's case has become a focal point of any story or discussion about prosecutorial misconduct, a subject we explore below with Betty Blackwell, an Austin criminal defense attorney and former chair of the Commission for Lawyer Discipline, who also spoke at yesterday's event.

A court of inquiry is scheduled to begin exploring Morton's case against his prosecutor, former Williamson County District Attorney Ken Anderson, in September. With the high degree of legal immunity afforded prosecutors, Morton's case against Anderson is highly unusual, and it's heightening the discussion of prosecutorial misconduct, which broadly means that a prosecutor handled, or mishandled, a case typically in a way that puts the defense at a disadvantage.

Prosecutorial flaws, deliberate or accidental, surface in many exoneration cases in Texas and around the country, and often involve the illegal withholding of exculpatory evidence from defense lawyers, which is required under the 1963 Supreme Court ruling in Brady v. Maryland. As more exonerations take place, more allegations of prosecutorial misconduct follow, but with almost no resulting discipline.

Here, we chat with Blackwell, the Austin criminal defense attorney and speaker at yesterday's panel (conversation has been condensed and edited):

Tell me about your role as chair of the Texas Commission for Lawyer Discipline. The Commission for Lawyer Discipline is made up of 12 members. Six are lawyers; six are non-lawyers. We do this as volunteer work to oversee the State Bar disciplinary council's office. When the State Bar wants to disbar somebody, they have to come to the commission and get permission. If they want to dismiss a case, they have to come to the commission and do that.

While you were there, was anyone disciplined for prosecutorial misconduct? I can only discuss public opinions and yes, Terry McEachern, who was the D.A. in the Tulia drug bust case received a fairly substantial penalty ... he received a probated suspension of his bar license for not turning over Brady material [exculpatory evidence]. It's a pretty involved cause, but he put on a witness that he knew had a fairly substantial criminal record, and he did not turn that over to the defense.

So he's the one with a public punishment ... Yes, I cannot discuss any private reprimands that were issued against any prosecutor.

But there have been private reprimands? I cannot discuss whether there are any private reprimands.

Have you seen awareness of prosecutorial misconduct change over the years? I will tell you DNA and the fabulous work done by the Dallas D.A.'s office has really brought this to the forefront because Dallas was so conscientious about saving all of its biological material that its office has had the most exonerations. It has really come very much to the forefront that there are innocent people in prison.

Why is it that almost no prosecutors are disciplined for procedural errors or withholding evidence? It's because the State Bar system is set up on a complaint-driven system. And one of the things we talked about at that symposium yesterday was getting judges to file complaints when they see this, getting prosecutors in their own office to file complaints against people in their own office that they've seen do this, would help the State Bar discipline these people.

And then the other issue as to why people haven't been disciplined, particularly about Brady violations, is that there is a four-year statute of limitations on all grievances. Brady never gets discovered within that four year period. So if you go online and look at Anthony Graves exoneration, and Charles Sebesta has a website -- he's the D.A. that convicted Anthony and put him on death row even though he was totally innocent. Charles Sebesta holds up the letter from the State Bar saying that they exonerated him. Well, you can read the letter. It says the statute of limitations has expired. And that's the issue. Most of these complaints on Brady cannot be brought to the Bar in a timely manner.

And so, one of the suggestions is to eliminate that statute of limitations so that the Bar can investigate these cases even though it's been many many years since it happened. There should be no statute of limitations.

Some of these people are in -- I mean, Michael Morton, 25 years ... That's right. He's another one that's a prime example of why that statute of limitations needs to be eliminated.

What other protections do prosecutors have in these cases? They have tremendous protection. The Supreme Court has said they cannot be sued.

And you're talking about the Thompson case? Yes.

Can you explain how that case is significant? Thompson [John Thompson, who also spoke at UT yesterday] was on death row. His attorneys had discovered that the D.A.'s office in New Orleans had suppressed exculpatory evidence that showed that his blood was not the blood of the actual perpetrator in a car, and based on that evidence, he was released and exonerated.

He sued the New Orleans D.A.'s office and got a multimillion dollar judgement based on the fact that New Orleans was not training their prosecutors on what the law about Brady was. They had failed to properly train their prosecutors on what they were supposed to turn over under the Supreme Court landmark case of Brady v. Maryland. And from that neglect of the D.A.'s office, Mr. Thompson was awarded a multimillion dollar verdict [before it went to the highest court]. The Supreme Court says that he has total immunity, and reversed the judgement so that prosecutors cannot be sued.

Do you see that as something that can be changed over time, or do you think that will set the precedent pretty strongly? That's going to be the precedent for quite a while. We all believe that's an unjust opinion and that people will just have to keep going back and fighting it.

Are you surprised at that Supreme Court decision? Yes, I actually was. They had -- there was some case law that supported suing a D.A. when they're grossly negligent. And to prove that's a pretty high standard; they had to prove a lot of negligence, not just a little bit, but a lot. And I was very surprised by that case -- and disappointed. Because what we're talking about is accountability. How do you make prosecutors accountable, because if they're not accountable they have total power and total discretion?

I'm not trying to paint all prosecutors as evil. I'm trying to say that in their mind and in their view that they're doing the public good and they're getting a murderer off the street, they get tunnel-vision, and they do not want to lose the case, so they don't want to turn over things to the defense that punch holes in their case. I think they honestly believe they are doing the right thing, but they have such tunnel-vision about it that they cant see that they have to play by a different set of rules to make sure that justice is done. They've got to turn over stuff that may hurt their case.

What else would improve the situation? Better discovery in the state of Texas. Texas has abysmal discovery laws in criminal cases. Lots of other states require the D.A.'s office to turn over all evidence that they have. Every county does it differently [in Texas]. The D.A. from Harris County was there [at UT yesterday] saying that they had changed their county rule about what they turn over, and that they're going to turn over all of this stuff.

Every legislative session, there is a bill to expand discovery, to mandate that across the state, prosecutors should turn over evidence in a criminal case, or allow the defense attorney to see the evidence in a criminal case. And it is defeated every single session because the prosecutors have a very powerful lobby.

Why do you think the public discussion is starting to take place now? The Supreme Court case recently came down at the end of last year. This symposium [yesterday at UT] blew holes in every single one of those safeguards listed by the Supreme Court. [The Supreme Court decision] talked about what people are taught in law school. Well, they had a law school professor there yesterday saying that they don't talk about Brady. They don't teach prosecutorial ethics. They teach civil law ethics because 99 percent of the people in law school are not going to become prosecutors.

I was one of the others that, having worked with the State Bar, I could say that the State Bar is really not set up to oversee prosecutors because we have to receive complaints in a timely manner. Well, the Bar Association can suspend these lawyers if they violate Brady -- well, not if they're not told about it, and not if they're not told about it within the statute of limitations. So they [yesterday's speakers] brought those [issues] to the public, to say the Supreme Court relied on some safeguards that are just not working.

Where's this all going? I don't know. The discussion is part of the process. It's very uplifting to me that we're having this discussion ... that the Innocence Projects are traveling around the state holding these symposiums to raise the awareness of these huge problems. What the results are, I don't know, but I know that it's good to have the discussion.

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Leslie Minora