In what may be a sign of much-needed change, a number of stories from around the country reflect potentially increased efforts to discipline prosecutors who have engaged in misconduct or are suspected of unethical behavior. Below are three different stories about potential and real prosecutorial discipline: one from Texas; one from New York; and one from Massachusetts. While they don’t show true and consistent progress towards a culture that holds prosecutors accountable for misconduct, it is encouraging to see the Texas state bar, a New York District Attorney’s office, and the Massachusetts bar take action in these types of cases.

The most high-profile case emerges from Texas, and involves the extraordinarily controversial capital prosecution and eventual execution of Cameron Todd Willingham. Many experts and advocates believe that Mr. Willingham was innocent of murdering his three kids. In 2009—five years after Texas executed Willingham—a widely-read, exhaustive New Yorker article by David Grann indicated that the evidence used to support the prosecution’s central claim of arson was misinterpreted by the State’s experts. A report published in April of 2011 by the Texas Forensic Science Commission, a body whose independence was compromised by the then-Governor Rick Perry’s political maneuvering, avoided questions of guilt/innocence but did nevertheless determine that the science used to convict was flawed. (Speaking of forensic science commissions, the federal commission on forensic science was just shuttered, allowed to lapse by new Attorney General Jeff Sessions. But we’ll stay positive while we can.) While Texas has gone to great lengths to subvert an official declaration of Willingham’s innocence, doubts regarding his guilt abound.

As is often the case with wrongful convictions, where the scientific evidence is weak or flawed, prosecutorial zeal can become misconduct. In 2013, the Innocence Project revealed that it had evidence indicating that prosecutors “withheld the recantation of a key witness who testified against Willingham at trial” and failed to disclose that they were “assisting this witness to obtain a reduced sentence in exchange for his testimony.” As we noted, a New York Times article soon followed, suggesting jailhouse informant Johnny Webb indeed had an undisclosed deal with the prosecution when he testified that Willingham had confessed to him while the two were in the Navarro County jail together. By the summer of 2014, lawyers filed a bar complaint against John Jackson, the lead prosecutor in the Willingham case. In a fairly unusual move, the State Bar of Texas proceeded to formally accuse Jackson of misconduct.

Mr. Jackson, who became a judge after successfully prosecuting Mr. Willingham, took his ethics case to trial this month. The two-week trial concluded this week, and on Wednesday, the jury returned an 11-to-1 verdict finding that Mr. Jackson did not commit misconduct. According to the Marshall Project’s reporting, it appears that the real hurdle for the State Bar was that the most important witness—the jailhouse informant Johnny Webb—turned out, once again, to be unreliable: “when Webb took the witness stand in person, he refused to answer questions about whether he had lied at Willingham’s trial and invoked his Fifth Amendment protection against self-incrimination more than 50 times. He also said he couldn’t recall or did not remember nearly 100 times.”

Despite the outcome, it’s encouraging that the Texas bar sought to bring a prosecutor to justice, something that happens rarely. But, it remains extremely troubling that the jurors who sent Mr. Willingham to his execution never heard crucial evidence revealing Webb’s lack of credibility. Ironically, that very evidence may have proved too much in Mr. Jackson’s ethics trial; just as jurors should not have relied on Webb in Willingham’s trial, the jurors in the ethics trial evidently could not bring themselves to convict based on Webb’s testimony. Mr. Jackson came out ahead in a “heads I win, tails you lose” situation. The Open File has long cautioned that snitch testimony is unreliable, and criminal defendants are likely to suffer at the hands of informants until members of the public realize they are often flawed or incentivized witnesses, or until prosecutors insist on obtaining higher quality evidence.

The second case is an even rarer story: one of accountability doled out by the District Attorney’s office rather than by an external source. In Suffolk County, New York, District Attorney Thomas Spota demanded ADA Glenn Kurtzrock resign in the middle of a murder case when a defense attorney realized (towards the end of the trial) that “Kurtzrock had been cherry-picking [Detective] O’Hara’s notes, withholding evidence that at least two other men might have been responsible for the killing.” After the misconduct came to light, the prosecution dropped the murder charge and the defendant pled guilty to a second-degree burglary charge, and is now facing a five-year sentence instead of a possibility of life in prison. In a candid assessment of the damage done by Mr. Kurtzrock, the DA apologized to the victim’s family and said “in this case, we failed with a devastating result.”

While Spota did and said commendable things in this instance, local reporting suggests that pressure to curb prosecutorial misconduct may have been building up in Suffolk County for a few years now. Joye Brown reports:

In 2012, Gabriel Hubbard was convicted of second-degree murder in the 2008 death of Jaquan Jones. But state Supreme Court Justice Martin Efman set that verdict aside, ruling that prosecutors should have told the defense that the same detective who took Hubbard’s confession had earlier taken a false confession from Thomas Moroughan, a cabdriver charged with assaulting an off-duty police officer who shot him in 2011. Suffolk prosecutors later dismissed the charge against Moroughan. Hubbard’s case was resolved last year after he pleaded guilty to manslaughter.

Brown goes on to document another recent Brady problem in yet another murder case:

In 2015, the case against Dante Taylor, who was charged in the 2014 murder of Sarah Goode, was marred by disclosures during a pretrial hearing that police had not read Taylor his rights before his first interview with them, and that police had searched Taylor’s car without a warrant. State Supreme Court Justice John Collins found later that prosecutors illegally had withheld from the defense a series of Crime Stoppers tips pointing to other possible suspects and destroyed a threatening voicemail message from the boyfriend with whom Goode had just split. The case went to trial in 2016, and Taylor was convicted of first-degree murder in Goode’s death.

This background suggests that perhaps Spota needs to take a proactive posture against misconduct, rather than a merely reactive one.

Several indicators suggest that Spota himself is part of the problem. He has been in office since 2002, and the New York Times reported in-depth last year that Spota “has found his office faced with accusations of employing strong-arm tactics, using questionable surveillance methods and making prosecutorial decisions colored by local political considerations.” Indeed, federal investigators have been looking into whether individuals in the DA’s office have obstructed justice in a federal prosecution. The closer one gets to the Suffolk County DA’s office, the clearer it is that, ethically speaking, it stinks to the high heavens. It might be wiser to interpret the DA’s request that Kurtzrock resign as a self-protective measure rather than a true victory for prosecutorial accountability. Still, we’ll take it.

The final story comes from Dukes County in Massachusetts, home to Martha’s Vineyard. There, the Massachusetts Board of Bar Overseers is holding a hearing to deal with three counts of misconduct brought against Cape and Islands Assistant District Attorney Laura Marshard. She is charged with suppressing exculpatory evidence, failing to correct false testimony, and meeting with a represented witness without notifying or obtaining permission from the witness’s lawyer. Despite clear judicial findings of misconduct to back up some of these allegations, the District Attorney, Michael O’Keefe, said “he stands firmly behind Ms. Marshard.”

According to a Boston Globe report, the Bar’s movement in this matter is almost unprecedented. “An Eye review of board data found just 11 state and local prosecutors have been disciplined for trial conduct in the past four decades. The Board of Bar Overseers, which adjudicates bar counsel complaints, has disciplined more than 1,300 attorneys overall since 2005.” To state the obvious, prosecutors almost never face professional discipline. In a bold move, the attorney defending Ms. Marshard in front of the Board attempted to capitalize on this dismal history. She argued, “Should you decide against her, Ms. Marshard would be the very first prosecutor ever disciplined in Massachusetts for withholding evidence. . . . Judges have dismissed charges for much worse; none of these [attorneys] have been disciplined.” In other words, Marshard’s position is that the bar’s historical failure to hold prosecutors accountable means that prosecutors should not be held accountable. If the Board falls prey to this claim, it may as well exempt prosecutors from the ethical rules altogether. Fortunately, the fact that the hearing is taking place at all suggests that things are headed in the direction of accountability. Meanwhile, the hearing is ongoing, and the result will be worth reviewing; we’ll post an update when we have one.

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