Editor’s Note: This is an excellent blog on prosecutorial misconduct and the miscarriage of justice in general. The authors are Houston attorney John T. Floyd and Billy Sinclair.
Filing Grievances, Request for Courts of Inquiry in Wrongful Conviction and Exoneration Cases
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
On December 12, 2011, writing for Mother Jones, Beth Schwartzapfel and Hannah Levintova published a piece titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Projectand the Center on Wrongful Convictions, determined there have been as many as 850 exonerations in this country since the late 1980s. The Innocence Project lists 282 exonerations since 1989 based on DNA evidence alone. Extrapolating from these two figures, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.
“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”
Writing in a 2008 paper titled “Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Garrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can be accurately measured because they have trial transcripts. Gross’ 2008 paper reported that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 wrongfully convicted people in the nation’s general prison population between 1989 and 2003.
Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which will appear in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and presidential candidate Rick Perry, who still maintains that the criminal justice system is working. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to reputable fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.
Some of these exonerations, both in Texas and across the country, were supported by district attorneys, many of whom had zealously prosecuted the innocent individuals. Take the case of Ernest Ray Willis who was charged in 1986 with the arson murder of two women in Iraan, Texas. He was convicted and sentenced to death the following year. Willis’ conviction and death were overturned by a federal district court in 2004. Pecos County District Attorney Ori White, who did not prosecute Willis, was not comfortable with the original circumstances of Willis’ case. He sought, and secured, a fire forensic report from Austin fire expert Gerald Hurst who, as he had in the Willingham case, concluded the fire in Willis’ case had not been intentionally set. Based on this report, D.A. White supported Willis’ exoneration by saying “the facts of the case exonerate Mr. Willis.”
On the other hand, Navarro County District Attorney John Jackson, who is now a district court judge in Corsicana, rejected the Hurst report out of hand in the Willingham case. Jackson actually told ABC’s Nightline that it was “very possible” and “very likely” that Willingham’s alleged arson murder of his children was some kind of “devil worship thing.” To this day, Jackson rejects all the fire forensic reports—a total of seven—which have concluded, like Hurst, that the fire which killed Willingham’s three children was not intentionally set, and, therefore, was not an arson murder. He believes Willingham deserved to be executed based enormity of his crime, his history of a spousal abuse and the fact that he was likely a devil worshipper.
And, then, there are those prosecutors who vehemently resist the production of any post-conviction evidence which may exonerate an inmate citing procedural arguments. Take the case of Henry “Hank” Williams as an example. Gray County District Attorney Lynn Switzer has fought an unrelenting, albeit losing, battle to keep physical evidence in the Skinner case from being DNA tested—evidence that he and his supporters claim will prove his innocence and point to the real killer.
The facts in the Skinner case are pretty straightforward. On the night of December 31, 1993, Skinner and his girlfriend, Twila Busby, called a friend of Twila’s, Howard Mitchell, and expressed an interest in going to a New Year’s party but needed a ride. When Mitchell arrived at Twila’s residence to pick up the couple, he found Skinner passed out on a couch and could not wake him. Twila joined Mitchell and the pair went to his trailer where the party was in progress. While at the party, Twila was harassed by an uncle, Robert Donnell, with whom she had had an incestuous relationship, who followed her around making rude sexual advances to her. She asked Mitchell to take her home.
Mitchell dropped Twila off at her residence between 11:00 and 11:15 p.m. At midnight a local police officer was dispatched to investigate a stabbing at a house located across the alley from Twila residence. The officer found Twila’s oldest son, Edwin Caler, sitting on the porch at the neighbor’s house. He had a stab wound under his left arm and superficial wounds to his right hand and stomach. He was transported to a local hospital where he died at 12:45 a.m. The police found a blood trail from the neighbor’s house to Twila’s front porch. They found blood smeared on a glass front door and a knife on the front porch. Inside the bodies of Twila and her youngest son, Randy Caler, were found. Twila had been strangled into unconsciousness and beaten at least fourteen times. A blood-and-hair stained ax handle was found near her body. Randy had been stabbed three times in the back as he lay in bed.
The police also discovered a black plastic bag lying between the couch and coffee table. The bag contained a knife and a towel stained with a wet brownish substance on it. The police also found a bloody handprint on the door leading out of Randy’s bedroom and into a utility room. Another bloody handprint was found on the door knob of the door leading from the kitchen into the utility room. A third bloody handprint was found on the knob of the door of the utility room that led into the backyard.
Skinner was arrested at a former girlfriend’s house at approximately 3:00 a.m. He was standing in a closet wearing blood-stained blue jeans and blood stained socks. He told the girlfriend, Andrea Reed, that he had been shot and stabbed, but when she removed his shirt, Reed found only an injury to his right hand, which she sutured. After Skinner told Reed a number of inconsistent stories about the wounds, she tried to call the police but Skinner reportedly threatened to kill her if she did. Post-arrest tests showed Skinner was both alcohol and drug intoxicated that night; that the bloody handprints found in the residence were his; and that the blood found on his clothes were Twila’s and Edwin’s.
Skinner has sought for years to have the following evidence found at Twila’s residence DNA tested: Twila’s fingernail clippings; a rape kit; two knives; a blood-stained dish towel; and a man’s windbreaker with hair and sweat on it. DA Switzer has staunchly resisted those efforts, but just hours before his scheduled executed this past November 9th, the Texas Court of Criminal Appeals intervened and ordered DNA testing of the evidence. Skinner and his supporters believe these tests will prove that Donnell, Twila’s uncle who is now deceased, was the real killer.
Why would DA Switzer not want this evidence tested, especially if would establish the innocence of a man condemned to die? The suspicion naturally exists that Switzer resisted the testing and pushed for Skinner’s execution to prevent the revelation that another Texas defendant had been wrongfully convicted and sentenced to death, this time by her office.
The same suspicion exists about Williamson County District Attorney John Bradley’s conduct in the Michael Morton case. Morton was convicted in Williamson County for the 1986 murder of his wife and sentenced to life in prison. The prosecution theorized that Morton killed his wife after he became enraged because she would not have sexual activity with him on his birthday following a night out with the family. Based upon the food contents in the victim’s stomach, the medical examiner concluded she had been killed in the early morning hours—a time that place Morton in the residence before he left for work around 7 o’clock in the morning. That was the sum of the State’s case against Morton.
However, prosecutors Ken Anderson and Mike Davis kept significant information from the jury: 1) a conversation the police taped with the victim’s mother who said the Morton’s three-year-old son described the attack to her, identified key details of the murder scene, and said his father was not home at the time. 2) The victim’s purse was taken during the crime which contained her credit card; the police had a document showing her Visa card had been found in a San Antonio store—evidence not pursued by investigators. And 3) the police had information that a check made out in the victim’s name was cashed nine days after her murder and the signature appeared to be a forgery. This evidence clearly showed that someone other than Morton killed his wife.
In 2005 the Innocence Project became convinced that Morton was innocent. They launched efforts to have a bloody bandana found at a worksite near the Morton residence DNA tested. Finally, a Texas appeals court intervened and ordered DNA tests be performed on the bandana. The results of those tests not only established Morton’s innocence after he had served nearly 25 years in prison but identified the real killer as well—a suspect who police now believe killed another woman in Austin one year after murdering Morton’s wife. Bradley, who is a longtime personal friend and a close professional colleague of Anderson, bitterly resisted having the bandana tested for nearly six years—just as Switzer did in the Skinner case.
In a rare move, the Texas State Bar announced recently that it had opened an investigation into the handling of the Morton case by all the prosecutors involved. We use the term “rare” because prosecutors are seldom disciplined for misconduct, even when it sends innocent people to prison or to death row. For example, in the case of Randall Dale Adams, in Ex Parte Adams, the Texas Court of Criminal Appeals found that Dallas’s First Assistant District Attorney Doug Mulder suppressed favorable evidence, knowingly used perjured testimony, and deceived the trial court during the defendant’s capital murder trial. That misconduct, which was dealt with in the award-winning documentary A Thin Blue Line, caused Adams to spend twelve years under a death sentence for the murder of a police officer before his conviction was set aside.
What happened to the prosecutor, “Mad Dog” Mulder? Nothing. Dallas Magazinereported that Mad Dog went on to become a criminal defense attorney after turning down an opportunity to become Dallas County District Attorney handed to him on a silver platter by the late district attorney Henry Wade. Mulder, and others in Wade’s office and in the office of Wade’s successor John Vance, considered the misconduct exhibited in the Adams case as a badge of honor. Mulder touted the fact he had sought the death penalty 24 times and had been successful 24 times, obviously using the same zeal he exhibited in the Adams case. Even after all the compelling evidence of Adams’ innocence was put before the court, DA Vance insisted, according to Dallas Magazine, that Adams had been “rightfully and legally convicted,” prompting one of his assistants to defy him by filing a one-paragraph pleading with the court calling for a new trial in the condemned inmate’s case.
Many of the approximately 20,000 innocent people in prison today were put there because of prosecutorial misconduct. The Innocence Project does not give an approximate percentage of “governmental misconduct” in exoneration cases, saying only that “many” do involve such conduct. As we reported in a recent blog, “The Ethical Implications of a Brady Violation,” consistent and thorough research by legal scholars and journalists found only a handful of cases nationwide in which prosecutors have been disciplined for Brady-type violations.
The most recent, and revealing, research in this area was conducted by the Northern California Innocence Project at the Santa Clara University School of law who released a 2009 report titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The Northern California Innocence Project (“NCIP”) examined more than 4,000 state and federal appellate rulings in criminal cases in California between 1997 and 2009 which involved alleged prosecutorial misconduct. In 707 of the cases, the courts explicitly found prosecutorial misconduct while in approximately 3000 cases no prosecutorial misconduct was found; and in another 282 cases the courts did not decide whether the prosecutors actually engaged in misconduct, finding the trials they were involved in were fair. In only 159 of the 707 cases did the courts find actual harm, resulting in a new trial, a new sentencing hearing, a mistrial or certain evidence being barred from use at trial. In the remaining 548 cases the courts upheld the convictions, finding the misconduct did not deprive the defendants of a fair trial.
The NCIP misconduct study clearly shows there is little, if any, professional accountability attached to rogue prosecutors. The study disturbingly shows “that those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.
“Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case.
“Further, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67 prosecutors—11.2 percent—committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five.”
We strongly suspect these alarming NCIP findings, suggesting the lack of disciplinary action in cases of prosecutorial misconduct, would be similar in the remaining 49 states. Most prosecutors will either work in law enforcement for their entire career or will move into private practice upon leaving the district attorney’s office. But a significant number, like Ken Anderson in the Morton case, will seek and secure judgeships. This creates a close-knit fraternity among prosecutors and judges with the often unintentional consequence of being protective of each other. How else do you explain only ten prosecutors in 4,741 disciplinary actions being prosecutors? The very number, standing alone, is shocking and offers prima facie evidence of collusion between prosecutors and judges to cover up the legal profession’s worst kept secret: prosecutorial misconduct has become endemic in our legal profession.
“Prosecutorial misconduct is an important issue for us as a society,” the NCIP said, “regardless of the guilt or innocence of the criminal defendants involved in the individual cases. Prosecutorial misconduct fundamentally perverts the course of justice and costs taxpayers millions of dollars in protracted litigation. It undermines our trust in the reliability of the justice system and subverts the notion that we are a fair society.
“At its worst, the guilty go free and the innocent are convicted. An especially stark example is the death penalty prosecution of Mark Sodersten, a man who spent 22 years behind bars convicted of a murder that the appellate court said he most probably did not commit.
“In 2007, a California Court of Appeal found that the deputy district attorney who prosecuted Sodersten, Phillip Crane, has improperly withheld from the defense audiotapes of his interview with a key witness. After reviewing the tapes, the justices found they contained dramatic evidence pointing to Sodersten’s innocence. Based on this finding, the court vacated his conviction, emphasizing: ‘This case raises the one issue that is the most feared aspect of our system—that an innocent man might be convicted.’
“For Sodersten, the ruling in his case came too late: he had died in prison six months earlier.”
The same thing happened with Timothy Cole here in Texas—he died in prison before his innocence could be established (here).
Phillip Crane, and all the other prosecutors (like those in Louisiana responsible for sending John Thompson to Louisiana’s death row for 18 years) who deliberately withhold evidence of innocence in a criminal case, should be prosecuted as common criminals, if not more so. After all they know the law and chose to deliberately violate it. There is no excuse for withholding exculpatory evidence in any case, much less in a case where an innocent man has indisputably been wrongfully charged with a crime.
So what did happen to Phillip Crane? Absolutely immune from civil liability and granted quasi-official immunity from the California State Bar, Crane was free to seek, and win, the District Attorney’s position in Tulare County in 1992, according to NCIP. And this despite the fact that, according to the California appeals court, he had undermined “the integrity and fairness that are the cornerstone of our criminal justice system” in the Sodersten case. It is prosecutors like Phillip Crane, Mad Dog Mulder and John Bradley who have made misconduct an accepted trial tactic. That’s why we strongly endorse the following three goals recommended by the NCIP in “eliminating attorney misconduct in criminal cases”:
- Expand judicial reporting requirements to mandate reporting of any finding of egregious prosecutorial misconduct, as well as any constitutional violation, even if deemed harmless; identifying in opinions the full names of prosecutors found to have committed misconduct; states’ highest courts of criminal appeals monitoring compliance with judicial reporting and notice obligations and making public the records of compliance; and replacing prosecutors’ current absolute immunity from civil liability with a form of qualified immunity.
- Expand discipline for prosecutorial misconduct under Model Rule 3.8(d) of the ABA’s Model Rules of Professional Responsibility, which have been adopted by 49 of the 50 states, while simultaneously increasing transparency of State Bars’ disciplinary process.
- Attorney-related reforms, such as ethical training for prosecutors and criminal defense attorneys, establishing misconduct procedures and developing exculpatory evidence policies.
Sixteen years ago three authors, C. Ronal Huff, Arye Rattner and Edward Sargarin, published a book titled Convicted But Innocent: Wrongful Conviction and Public Policy(Sage Publications. Inc. 1996). The book was based on ten years of measured, conservative research which outlined not only the frequency and causes for wrongful convictions of innocent people but the tragic consequences that inevitably flow from them. The authors interviewed 188 judges, prosecutors, public defenders, sheriffs, and police chiefs in the state of Ohio to draw the conclusion that as many as 10,000innocent people are wrongfully convicted each year in this country. This number supports Mother Jones’ conclusion that there are currently 20,000 innocent people in the nation’s prison system. While there is no way to precisely determine how many of these innocence cases involve prosecutorial misconduct, the NCIP study offers some indication: the 707 cases of prosecutorial misconduct it identified, out of the 4000 examined, supports an possible prosecutorial misconduct rate as high as a 17 percent in wrongful conviction cases. This would mean that 3400 innocent people are locked up in our country’s penal institutions as a result of prosecutorial misconduct.
Because State Bars have been woefully remiss in examining and sanctioning prosecutorial misconduct, we support the recent move by Michael Morton’s attorney, John Raley, who is working with the Innocence Project, to have a “court of inquiry” hearing to determine the degree and level of prosecutorial misconduct in the Morton case. New York’s Pace University expert on prosecutorial misconduct, Bennet L. Gershman, recently told the New York Times: “I haven’t seen anything like this, ever. It’s an extraordinary legal event.”
We would encourage all attorneys in Texas representing exonerated inmates to follow Raley’s lead and request “court of inquiry” type hearings. We further advocate that each county and state criminal defense attorney association appoint standing committees to file disciplinary complaints with the State Bar about any case in Texas in which prosecutorial misconduct led to the conviction of an exonerated defendant, regardless of the defendant’s prior bad personal or criminal history. Raley’s efforts in the Morton case clearly reveal that criminal defense attorneys have a legitimate, even vital, obligation to not only expose but prosecute misconduct by rogue prosecutors, regardless of their standing in the legal community.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified by the Texas Board of Legal Specialization
