Lawyers take oaths to serve as officers of the court, meaning, basically, that they swear to follow the law and to do everything they can to ensure that the court system of which they are a part does the same. As part and parcel of this system, prosecutors are bound by oath to disclose to the defense, before trial, or as soon as they obtain or learn of it if a trial already has started, all the evidence they have, including evidence that might tend to prove that the defendant is not, in fact, guilty — “exculpatory” evidence, the lawyers call it.
That’s the way the system is supposed to work, and the consequences of failure are immense: Not only does an innocent person go to prison or worse, but the guilty person also goes free, perhaps to victimize others.
We have no idea how often prosecutors violate this obligation, but cases come to light with enough regularity that we must assume it’s fairly common. And most of the time, the worst thing that happens to a prosecutor as a result is a reprimand, nearly as I can tell (real lawyers are welcome to jump in here and correct me). Frequently, nothing at all happens.
(Indeed, the only time I can recall a prosecutor getting seriously disciplined for a mistake was a rookie assistant DA in Iredell County in the mid-1980s who failed to elicit from a state trooper on the stand the crucial fact that the defendant had been the person the trooper had found behind the wheel in a wreck involving a school bus or school children, I forget which. The defense attorney quite properly moved for a “directed verdict” — an immediate ruling from the judge — for acquittal, and the judge quite properly granted it. The rookie prosecutor was fired. The DA at the time went on to serve as a Superior Court judge himself.)
In fact, in 35 years, much of it professional, of watching the courts, this is the first time I can recall a prosecutor actually going to jail for withholding exculpatory evidence:
Former Williamson County District Attorney Ken Anderson did not disclose evidence to the defense in a case 27 years ago, and will spend 10 days in a county jail.
As a consequence of that misconduct, though, Michael Morton spent 25 years in prison for the murder of his wife Christine, a crime he did not commit, for which he was exonerated by DNA evidence last year.
Christine Morton’s actual killer, Mark Alan Norwood, was convicted of her murder earlier this year, and is now indicted for killing another woman in Austin two and a half years after Christine’s death. …
Anderson refused to disclose that the lead police investigator had learned that Morton’s 3-year-old son witnessed the crime and told his grandmother that Morton wasn’t the perpetrator, that Anderson had learned that a neighbor had reported seeing someone staking out the house, and that someone had tried to use the victim’s credit card in San Antonio after the murder.
Anderson had been facing up to 10 years in prison on a felony and misdemeanor charges of tampering with evidence, which were dropped according to the Austin American Statesman. Anderson will be disbarred for at least five years as well, pending final review by the Texas Supreme Court.
So a guy who knowingly, willfully and intentionally 1) put an innocent man behind bars for 25 years and 2) let a guilty man go free, allegedly to kill again, is going to 1) serve 10 days in jail and 2) maybe lose his law license for five years, after which he’ll be legally entitled to practice law again and at least hypothetically able to imprison more innocent people.
Three words: Aw, hell, no.
For starters, this guy should be disbarred for life.
And then? He ought to serve a day in prison for every day that Anderson served.
And that, right there, ought to be the standard: If you, as a prosecutor, knowingly, willfully, and intentionally withhold exculpatory evidence and an innocent person is convicted as a result, you ought to get the same sentence the defendant did. And, hell, yes, if you send the wrong guy to Death Row and he gets executed, then you should be, too.
I have no reason to think many Americans, or even many lawyers (no matter what type of law they practice) are serious about solving this problem. But if we are serious about solving this problem, this approach will solve it. Indeed, I would argue that this might even be the one instance in which the death penalty really would as a deterrent.