Unscrupulous prosecutors engage in misconduct in criminal proceedings because they know that they will, in all likelihood, get away with it—and if by happenstance their misconduct should be exposed, there are little threat that will be held professionally accountable for that misconduct. And, more to the point, they know they are absolutely protected from civil liability and money judgements per edicts from the U.S. Supreme Court.

Only two states, North Carolina and California, permit the criminal prosecution of prosecutors (on felony or misdemeanor charges) who willfully violate discovery obligations. No prosecutor has been charged in either state since the laws went into effect in 2011 (North Carolina) and 2017 (California).

Prosecutorial misconduct in any case is shameful but in death penalty cases in which a human life is at stake, it is nothing short of criminal.

Prosecutorial Misconduct in Death Penalty Cases

he recent finding that a Harris County capital defendant, Alfred Dewayne Brown, was “actually innocent” of the murder for which he spent nearly twelve years on Texas’s death row underscores the kind of criminality at play when prosecutors and/or law enforcement deliberately withhold or willfully fabricate evidence to convict a defendant.

Such misconduct is criminal, or at the very least unethical in its worst form and it happens more than the average citizen realizes.

The Arizona Republic in 2013 found 16 death penalty cases in which prosecutors engaged in misconduct between 2002 and 2013. That represented 40 percent of all capital cases in the state during that period. Then there is the 2016 report by the Fair Punishment Project that found the nation’s “five deadliest prosecutors” secured some 440 death sentences in this country since the 1977 reinstatement of the death penalty—three of whom were found to have engaged in misconduct in 33% to 46% of their death penalty convictions.

Legacy of Death Follows Johnny Holmes, Kelly Siegler

One of those five prosecutors was former Harris County District Attorney Johnny Holmes who secured the most death sentences ever, topping out at 200.

One of Holmes’s protégées is former Harris County prosecutor Kelly Siegler who was recently found by a Harris County judge to have committed 36 acts of prosecutorial misconduct in just one capital case. Earlier this year a Harris County federal judge threatened to hold Siegler in contempt for dodging subpoenas in an attempt to avoid testifying in a case in which she is again being accused of prosecutorial misconduct. This former prosecutor turned Cold Justice reality TV star secured the death penalty in 19 of the 20 capital cases she prosecuted.

Prosecutorial misconduct has historically enjoyed a safe haven in Harris County, thanks to Holmes and his successor Charles “Chuck” Rosenthal.

A 2018 Houston Law Review article found that criminal court judges (most of whom were Republicans) sided with prosecutors in 96 percent of the post-conviction review applications filed by death row inmates.

This one-sided justice may change.

Election Stirs Hope for Reform

The 2018 midterm elections saw all of the county’s Republican judges swept from office and replaced with more progressive Democratic judges. Only time will tell how these new judges will respond to allegations of prosecutorial misconduct in death penalty cases. If the Alfred Dewayne Brown case is a harbinger, the county may lose its disgraceful national reputation as the epicenter of prosecutorial misconduct in capital cases.

Laura Bayouth Popps, deputy counsel for the State Bar of Texas Office of Chief Disciplinary Counsel, posted a piece titled “Prosecutorial Misconduct and The Role of Discipline: Examining the Intersection Between Error and Ethics” on the State Bar’s website in which she makes the following observations:

“Until recently, complaints against prosecutors were fairly uncommon. Studies indicate this is because those in the best position to report misconduct—namely, judges, other prosecutors, defense attorneys, and defendants—have strategic and political disincentives to do so. Underreporting leads to a lack of appropriate discipline for prosecutors, and yet this factor is frequently overlooked in articles and studies examining the issue.

“This historical ‘underreporting’ of prosecutorial misconduct is a trend that appears to have reversed itself, at least in Texas. Grievances against prosecutors are now common. Many seek relief for issues not governed by the disciplinary rules and are dismissed. But when the allegations do implicate the disciplinary rules, they are investigated and prosecuted like any other case. This surge in grievances against prosecutors in recent years is undeniably correlated with the increase in sanctions, indicating that the system works as it should when all participants do their part, starting with the initial reporting of misconduct.

“The passage of the Michael Morton Act in 2013 eliminated some of the guesswork for prosecutors who are contemplating what must be disclosed. Now, upon request, the state must turn over all material evidence that is in their possession, custody, or control and that is not work product or otherwise privileged. Additionally, to the credit of various prosecuting agencies and organizations such as the Texas District and County Attorneys Association, there has been a significant increase in training efforts to ensure prosecutors understand their disclosure obligations under Brady and the ethics rules. In the wake of these efforts, we will likely see a decline in violations of Rule 3.09(d) in the coming years. At the same time, as with any profession, there are those who will intentionally thwart the rules in order to gain an advantage. It is those lawyers that the discipline system is uniquely designed to deal with and why everyone must continue to do their part to address this important issue.”

Efforts by State Bar Has Had Mixed Results

In 2017, a Navarro County, Texas, jury by an 11-1 vote rejected charges brought by the State Bar against the country’s former District Attorney John Jackson that he made false statements, concealed favorable evidence, and obstructed justice in the death penalty case of Cameron Todd Willingham who was executed in 2004.

However, the State Bar had success with the 2016 disbarment of former Burleson County District Attorney Charles Sebesta whose misconduct sent an innocent man to death row for 18 years before he was exonerated.

Criminal defense attorneys can only hope that the State Bar will continue the Sebesta-type diligence, but its dismissal of the grievance in the Alfred Dewayne Brown case creates serious concerns about the Bar’s ability to hold those who engage in misconduct accountable.

These concerns are justified.

A 2017 report by Open File, a group that tracks prosecutorial misconduct, found that nearly half of the stays of execution in this state involved tainted or unreliable evidence. In fact, The Appeal reported that the very first death penalty case brought in Texas in 2018 has raised multiple claims of prosecutorial misconduct.

The ghost of Johnny Holmes does indeed cast a long, perhaps everlasting shadow of lawlessness over Texas’s criminal justice system.