A few days ago, the  New York Times had an insipid editorial deriding the failure of prosecutors to honor their obligation to disclose exculpatory evidence pursuant to Brady v. Maryland.  The impetus for the editorial was the Michael Morton DNA reversal in Texas, where it only took 25 years to learn that then prosecutor, now Judge, Kenneth Anderson, withheld evidence. 

While that was bad enough (except in Texas, where this appears to have become the norm), current Williamson District Attorney John Bradley spent six years doing everything possible to prevent Micheal Morton from getting the DNA tested that would exonerate him.

For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

The Times’ editorial decried the situation, noting that something had to be done about the failure to turn over exculpatory evidence under Brady. It noted that one solution, holding prosecutors who fail to perform this duty accountable, was hampered by the very court that decided Brady, a few personnel changes having occured in the meantime.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial.

Up to this point, it’s all background, as the real news comes via  Grits for Breakfast and the Austin Statesman :

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton’s false conviction, a development the Austin Statesman reported today. Except … oh yeah … Grits predicted earlier the state bar “almost certainly” wouldn’t do anything.

(Aside: I could have used the official newspaper version of events, but couldn’t deny Scott Henson the credit for having predicted the outcome. Not that it was a particularly difficult prediction, but he nailed it and deserves the credit.)

To the extent that the criminal justice system can be analogized to finely tuned machine, there are some gears that have never quite meshed.  This is one of them, the obligation of the prosecution to “do justice” rather than conceal exculpatory evidence and do everything possible to deprive a defendant of the opportunity prove innocence, all to get a conviction. The system works on incentives, but the incentive for the prosecution to act against its conviction-at-all-costs interests doesn’t work.

It’s not that some prosecutors, as individuals or because of office culture, don’t comply with Brady.  It’s that they do so because they choose to do so. It’s a personal choice, because there is no mechanism to make them.  A system that relies on good will alone gives those inclined toward venality a free hand.

Brady has been a right without a remedy from the start. Decided in 1963, opinion by Wild Bill Douglas, I’ve often imagined Douglas and hs cohort Brennan chortling over how the defense is going to make this one happen.  And it hasn’t, except by prosecutorial oblige.

Dave Hoffman mused about what may (or not) be a yiddish saying: To a worm in horseradish, the world is horseradish.  The Supreme Court sees horseradish.  The Texas State Bar sees horseradish.  Associate Justice Clarence Thomas sees horseradish too.  Not that they’re worms, which would be disrespectful, but the point remains.

The rationale for protecting prosecutors from the consequences of their wrongful actions is that they might be reluctant to risk hard choices in the performance of their duty if they feared personal consequences for failure.  We need brave and bold prosecutors to do the people’s work of convicting criminals, and we would all suffer if they waver in fear for an innocent mistake.  Got it.

Justice Thomas’ understanding in Connick, however, is hard to accept as anything more than an excuse. He’s got people to research how many prosecutors are sanctioned for unethical conduct, and he must have been aware that he was blowing smoke.  The same is true of the rest of the Supremes, and the Texas State Bar as well.  If all they see is horseradish, it’s because they must really like horseradish.

In other words, the gears of the criminal justice system work the way they’re designed only when and if prosecutors of good will choose to make them work.  But for many prosecutors, and from my horseradish view most, they too are worms, and what they see in their horseradish is bad people who must be convicted no matter what. 

The New York Times editorial applauded prosecutors of good will for doing what they chose to do to vouchsafe the Brady rights of defendants. The Supreme Court passed the buck to disciplinary committees to provide the incentive to make recalictrant prosecutors behave ethically.  The Texas State Court did it’s job and exonerated John Bradley, saying he acted ethically and professionally.  Then they all sat down for a nosh of gefilte fish slathered with horseradish.  Yum.

And the Bills, Douglas and Brennan, are laughing at their joke on us.

The conviction of the innocent as a result of prosecutorial impropriety due to withholding of exculpatory evidence isn’t sufficiently important to create incentives to prevent it from happening.  It is more important that prosecutors perform their duty without fear of consequences for impropriety. There is no solution for this problem that the courts will impose. 

Now pass the horseradish and stop complaining.  This is our system, and we’re not going to get Clarence Thomas to admit that he doesn’t love horseradish. No finely tuned machine can work with horseradish stuck in its gears.