TEXAS – Should prosecutors be punished for withholding evidence ?

may 23, source 2012http://gritsforbreakfast.blogspot.com

Must-read stuff from Texas Monthly, including a fascinating roundtable discussion among exoneree Anthony Graves, the prosecutor who helped clear him, Kelly Siegler, state Sen. Rodney Ellis, Austin police chief Art Acevedo, Court of Criminal Appeals Judge Barbara Hervey, and Dallas District Attorney Craig Watkins:

Lots of interesting tidbits from the roundtable, but let’s point out one interesting discussion below the jump about whether training is sufficient to cause prosecutors to hand over exculpatory evidence to the defense, or if punishment is needed for noncompliance.
Remarkably, Kelly Siegler declared that ” I have been a prosecutor my whole life, and I am telling you, we are not properly trained in how to deal with Brady. That’s separate and apart from criminal prosecutors like Charles Sebesta. We are talking two different things here.” Given that Brady has been around since (just) before Grits was born, I find that extraordinary. So did Chief Acevedo, who had this exchange with her:

Acevedo: … I’ve got to tell you, it really bothers me when I hear prosecutors say that prosecutors don’t understand Brady, when, as a police chief, I use Brady to fire people.

Siegler: You’re thinking that Brady is this black-and-white, clear-cut thing. That’s not what Brady is in the world of prosecutors. …

Acevedo: I’m not an attorney, but if I’ve got information that is exculpatory, I have a moral obligation to—

Siegler: “Exculpatory” is an easy word to use, but we’re talking about inconsistent evidence, mitigating evidence—that too. And I guarantee you every single one of the cops that work for you don’t put in their offense reports every single little inconsistent thing they know.

Acevedo: Oh, absolutely. But you know what? Here’s the piece that is missing, that Anthony’s talking about. You can train people all you want, but you’re dealing with human beings. If there are not consequences for willful misconduct, you can have all the training in the world, you can have all the rules in the world.

Graves: You gotta do more than train.

Acevedo: It drives me nuts that I have 180 days [from the time of misconduct to discipline a police officer]. That’s all I have. One hundred and eighty days. That’s nothing. There should not be a statute of limitations when it comes to violating the public trust. And cops will hate me for saying that. Prosecutors will hate me for saying that. But in a democracy, if our criminal justice system doesn’t work, we are in deep trouble. And it starts with those consequences.

Acevedo called for criminal prosecution of prosecutors who break the law, as Kelly Siegler alleged Charles Sebesta did in Anthony Graves’ case. (She called the retired DA a “criminal”; I’ll bet TM’s libel lawyers had a field day vetting that one!) The problem with criminalizing prosecutor misconduct is, as in Sebesta’s case, what prosecutor would prosecute it, especially against a sitting elected DA who’s the boss of all the prosecutors who might do so?

On the civil side, Siegler insists there can be no reduction of immunity, but I wish Acevedo had pressed that point, too. Police officers only have “qualified” instead of “absolute” immunity like prosecutors, which basically means they can be held liable only when they knowingly and intentionally violate someone’s civil rights. (In practice, qualified immunity covers nearly all lawsuits citizens bring against police – very few get past the summary judgment stage.) But the actions for which police officers have immunity are usually things done in the blink of an eye – the gun fired, the punch thrown, the chase engaged, the red light run, etc.. By contrast, prosecutors can sit in their offices for months deciding whether or not to disclose exculpatory evidence, but if they knowingly, intentionally withhold it they have “absolute” immunity. Grits sees no good reason prosecutors should have greater immunity than police officers, and I’d love to hear any prosecutors or their defenders please explain in the comments WHY they should.

There’s quite a bit more in the roundtable discussion, from which I just pulled one interesting tidbit, so read the whole thing.


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