Prosecutors wield more power than almost any other person in the criminal justice system. They have the ability to either proceed with a case or dismiss charges, to bargain with a defendant for a guilty plea, and to recommend a severe sentence or plead for leniency. Given the breadth of criminal law, a prosecutor can find reason to prosecute almost anybody if they have the time, the money, and the motive. Unfortunately, this unchecked power is always subject to abuse and prosecutors sometimes engage in misconduct.
A prosecutor may commit misconduct when, in the course of their professional duties, they act in ways that are inconsistent with ethical mandates which they are obliged to obey. These mandates are governed by two distinct sets of rules; the legal framework that binds prosecutors so as to ensure due process, which includes state and federal constitutions, statutory law, rules of criminal procedure, judicial orders, etc., and the ethical standards of the legal profession as expressed in each state bar’s professional codes.
An act of prosecutorial misconduct may violate one or both of these codes. Prosecutors are required to abide by both.
Enforcement of the two codes differs; when prosecutors violate legal rules as part of a criminal case, the primary recourse is for the criminal defendant to ask to have his conviction overturned (or if the trial is in progress, to ask the judge for a mistrial, to strike matters from the record, or to otherwise minimize the damage caused). When prosecutors violate professional rules, the bar complaint process is the primary enforcement mechanism.
One of the greatest threats to rational and fair fact‐finding in criminal cases can result from a prosecutor hiding evidence vital in the defense of a defendant's innocence. Between 1963, when the U.S. Supreme Court ruled in Brady v. Maryland that such a practice is a deprivation of due process, and 1999, at least 381 defendants nationally had a homicide conviction thrown out because prosecutors concealed evidence. Of the 381 defendants, 67 had been sentenced to death. The consequences of such misconduct when it is discovered can be serious. Convictions are reversed, cases are retried, appeals are brought that cost taxpayers millions of dollars, and public confidence in prosecutors is undermined.
Michael Morton
In 1987 Michael Morton was arrested and charged with beating his wife to death in 1986. An investigator in the case discovered testimony that their three-year-old son had witnessed a “monster” committing the crime and that Michael Morton was not home at the time, as well as further testimony from a neighbor about a man with a green van who had been parking for weeks behind the Morton’s home. In addition, a blood-soaked bandanna was later found at a nearby construction site. Although this testimony and evidence pointed to an intruder entering the Morton’s home and killing Christine Morton in the hours after Michael Morton had left for work, the jury would never be presented with it.After the prosecutor's refusal to call the lead investigator of the case, the defense suspected that the prosecution was hiding evidence. The prosecutor, Ken Anderson, assured that all favorable evidence had been turned over and provided the judge with a sealed file which he claimed contained all the evidence they had collected. However, the testimony and evidence which demonstrated Morton's innocence was omitted.
Questionable testimony of two state experts and a note Morton had left on the bathroom mirror was the only evidence presented by the prosecution, and this was used to prove a theory that he had killed his wife because he was angry she wouldn’t have sex with him. In February 1987, Michael Morton was convicted in a Williamson County, Texas court and sentenced to life in prison.
In February 2005 a civil attorney, together with the New York based Innocence Project, filed a motion for DNA testing in Morton's case; Williamson County District Attorney John Bradley "tenaciously fought" against DNA testing for six years before a judge finally ordered the tests. These tests did, in fact, link another man to Christine Morton's murder. After nearly 25 years in prison Michael Morton was exonerated and finally released from prison on October 4, 2011. The Innocence Project subsequently filed a motion to remove Bradley from further court proceedings, but stopped pursuing it after Bradley agreed to dismiss the indictment against Morton. That same year, the Texas Supreme Court ordered a Court of Inquiry into possible misconduct by the prosecuting attorney. Ken Anderson was now a judge, appointed to the bench by Gov. Rick Perry in 2002.
In 2012 the Texas Supreme Court convened a court of inquiry, finding that there was evidence to support Morton's contention that Ken Anderson had tampered with evidence and should have been held in contempt of court for not complying with the trial judge's order to let him review all possible exculpatory evidence. The court of inquiry began in February, two months later the court ordered Anderson to be arrested, saying “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.” Anderson responded by claiming immunity from any prosecution under the expiry of applicable statutes of limitation. On September 23, 2013, Anderson resigned from his position as district court judge.
The following November, Anderson was found to be in contempt of court and was sentenced to 10 days in county jail, fined $500, and ordered to perform 500 hours of community service. He agreed to give up his license to practice law in exchange for having the charges of evidence tampering dropped. He was released from jail after having served five days.After the plea agreement was announced, it was publicly revealed that Williamson County District Attorney Jana Duty agreed to authorize an independent review of every case that Anderson ever prosecuted, along with every case in which Bradley successfully opposed DNA testing.
On May 16, 2013, Governor of Texas Rick Perry signed Texas Senate Bill 1611, also called the Michael Morton Act, into law. The Act is designed to ensure a more open discovery process. The bill's open file policy removes barriers for accessing evidence. Morton was present for the signing of the bill, which became law on January 1, 2014.
Sanctions for prosecutorial misconduct include appellate reversal of convictions, finding the prosecutor in contempt of court, referring the prosecutor to a bar association grievance committee, and removing the prosecutor from office. However, prosecutorial misconduct persists in large part due to the inadequacy of these penalties. Although an appellate court can reprimand a rogue prosecutor or reverse a conviction based on misconduct, such sanctions still don't hold the prosecutor personally accountable; during the course of a trial, the prosecutor is absolutely immune from any civil liability that might arise due to his or her official conduct. Moreover, the appellate courts can affirm a conviction despite the presence of serious prosecutorial misconduct by merely invoking the harmless error doctrine. Under this doctrine, an appellate court determines that errors were of such a minor or trivial nature that they didn't harm the defendant's rights.
