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Bill of the Week: Prosecuting the Prosecutors

DAs oppose proposal to expand criminal liability
Jordan Smith, 9:35am, Sat. Apr. 20, 2013

A bill to extend the time a wrongfully convicted inmate has to file a grievance with the State Bar, alleging prosecutorial misconduct, appears poised to pass, but a measure that would increase criminal sanctions for the same violations seems more likely to flounder and wilt.

When Senate Bill 825 by Sen. John Whitmire, D-Houston, was heard in committee back in March nary a prosecutor opposed it – indeed, several, including representatives of both the Bexar and Harris County D.A.'s offices signed up in favor of the measure, which would give a wrongfully convicted inmate a year from release to file with the Bar a grievance alleging prosecutorial misconduct and, should misconduct be found, would require the Bar at the very least to issue a public reprimand.

The measure was filed in response to the now-infamous case of Michael Morton, imprisoned for nearly a quarter century for the murder of his wife Christine before DNA evidence proved another man – Mark Alan Norwood, finally convicted of the crime last month – was actually responsible for her death. In Morton's case, then-Williamson County D.A. Ken Anderson withheld from the defense key evidence that might have avoided Morton's wrongful conviction. But Anderson, now a sitting district judge, may never be held accountable for that. Although he was subject of a rare court-of-inquiry proceeding earlier this year, Anderson's position has been that he didn't do anything wrong – and his defense team has argued that even if Anderson had, he would be immune from prosecution because the statute of limitations would have long ago run out. Indeed, even though a judge yesterday ruled that evidence demonstrated that Anderson did willfully hide evidence, and issued a warrant for his arrest, his attorneys have said they will appeal the ruling.

"This is a common-sense policy to advance justice to those who have been wrongfully convicted," Whitmire said in a February press statement. When the bill came up for hearing in the House Criminal Jurisprudence Committee, bill sponsor Dem Rep. Senfronia Thompson reiterated that sentiment, saying that the bill's aim is "seeking accountability and justice for the wrongfully convicted individual." Indeed, the hearing was short and to-the-point, wrapping up in under four minutes.

That was not the case with a similarly-imagined measure, House Bill 328, by Rep. Harold Dutton, D-Houston, that would seek to hold prosecutors accountable for the kind of violations that happened in the Morton case by eliminating the statute of limitations for bringing a criminal charge of official oppression and would make the charge a state-jail felony instead of a class A misdemeanor. The measure would "simply raise the stakes a little bit" by using possibility of criminal punishment as a deterrent from failing to release exculpatory, impeaching, or mitigating evidence to the defense.

The measure is opposed by a host of prosecutor offices across the state as well as by a handful of police associations. Indeed, Potter County District Attorney Randall Sims testified that the measure simply isn't necessary. Most prosecutors now have open file policies (and with expected passage of a new discovery bill, all prosecutors would be required to hand over to the defense police reports and other statements in advance of trial – a measure that prosecutors support, Sims noted), which means there is less opportunity to hide the ball. "The system really has done a pretty good job of correcting itself already," Sims told the committee. He said he believed that Whitmire's bill would "address this issue" and that removing a statute of limitations for a crime like this would be going overboard – removing the statute of limitations is done "usually when people have killed someone in some form or fashion," he said. Of course, the argument could be made that hiding the evidence that steals a quarter century from someone might be akin to killing them.

Indeed, Dutton took exception to Sims' testimony, telling his colleagues that his measure is not made moot by passage of a broader discovery law. "Don't be misled," he said. "Prosecutors who want to hide things are not going to put it in the file." He said that we really don't know how often willful prosecutorial misconduct actually happens and noted that the misconduct in Morton's case, for example, did not come to light because of anything prosecutors did to right the wrong. Dutton is "trying to prevent [this kind of] event for others," he said, "Not put a Band-aid on it."

Dutton's measure was left pending.

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