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Dallas Morning News editorial – “Policing Texas Prosecutors”

Prosecutors are the most powerful, or arguably, the most powerful group of people in America, with the ultimate weapon to put citizens in jail, prison, or to death.

On October 26, 2012, The Dallas Morning News called for Texas legislators to pass laws, such as mandatory reciprocal discovery in criminal cases, that would help avoid wrongful conviction. Such a statute would be based on two Supreme Court cases, Brady v. Maryland (in 1963) and Kyles v. Whitley (in 1995). In the Brady case, the Supreme Court said it is the Constitutional duty for prosecutors to turn over any evidence tending to show that the defendant was innocent. In the Kyles case, the Supreme Court expanded that to include evidence which impeached the credibility of any witness testifying for the government, state or federal.

The problem is the temptation of prosecutors not to hand over evidence which "helps the defense make its case." Young prosecutors want to win, both for their own self-esteem and for advancement. Ambition for advancement up the ladder also drives older prosecutors as well. Finally, the elected prosecutor wants to maintain his job, which requires assuring the public, at election time, that he has a high conviction rate, and is prosecuting vigorously in keeping the community safe from criminals.

DNA proves that there are wrongful convictions, and that the criminal justice system is flawed. However, can anyone reasonably doubt that there are also wrongful convictions where DNA is not available? Even in wrongful convictions, false confessions occur in many cases because the police promise the arrested citizen that they will "help" the citizen-accused by putting in a good word to the prosecutor or the Judge to keep his sentence lower than it otherwise would be, if he will confess.

The writ of habeas corpus, dating back to the 1600s, and known as "The Great Writ," gives wrongfully convicted defendants an opportunity to file for post-conviction relief when there is prosecutorial misconduct or ineffective assistance of counsel, or both, as well as other grounds. Even when those two or other grounds are present during the proceedings of the citizen-accused, they are often difficult to prove. In addition, prosecutors and Judges are skeptical of the writ of habeas corpus because it is abused, and because neither wants to admit that he/she participated in a proceeding that was tainted. So, the prosecutors fight against the writ being granted, and the Judges "find" facts in the prosecutors' favor. The convicted person can appeal that judicial finding, but the Texas Court of Criminal Appeals typically affirms the trial court's recommendation, which is usually against the convicted citizen.

All that is required for a writ of habeas corpus to be effective is to show evidence that "undermines the confidence in the verdict." There is no requirement to prove that the defendant would have been acquitted. The mandatory legislation requiring mandatory pre-trial reciprocal file sharing between prosecutors and defense attorneys is a beginning. But the legislators should go further, and specifically define by statute what is known as "Brady evidence" to include impeachment evidence, which many prosecutors are not aware of; and, to legislatively mandate the prosecutor to interview those who did the investigation on the case, including the police, the detectives and federal agents. That way, the prosecutors avoid "plausible deniability," when they do not disclose something the police know, which is helpful to the defense, but which the police do not pass on to the prosecutor. The prosecutors' interview of law enforcement is a Constitutional requirement under Kyles v. Whitley, but very few prosecutors conduct that inquiry, with the result that the Constitution is violated on a daily basis in the criminal justice system.

Arch McColl is an experienced Post Conviction Lawyer.

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