The case for punishing prosecutor misconduct

At Texas Monthly, Pam Colloff yesterday made "the case for punishing prosecutors who abuse their power," focusing on the Hannah Overton, Michael Morton and Anthony Graves cases. She also highlighted a case that's gotten less attention:

Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.

Colloff suggested the State Bar of Texas must "radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist."

She also recommended that, "the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar."