Tipping Point: Is America finally saying no to prosecutorial overreach?

This week Texas Supreme Court Chief Justice Wallace Jefferson ordered a special “court of inquiry” into former Williamson County District Attorney Ken Anderson’s alleged misconduct in his prosecution of Michael Morton, proven innocent of murdering his wife after he served 25 years in prison. While very unusual, this investigation is not the only evidence that prosecutors in the U.S. may not remain fully immune from scrutiny or accountability for prosecutorial overreach and misconduct.

In a case in Illinois, when DNA evidence eliminated suspect Jerry Hobbs from the rape/murders of his pre-teen daughter, longtime Lake County prosecutor Michael Mermel defended his discredited crime theory by suggesting that the young girl could have contracted the contrary semen while playing in the woods where couples might have had sex. Mermel has had unorthodox crime theories before, but this time he experienced a different response: He was fired.

Mermel was a subject in “The Prosecutor’s case against DNA,” a New York Times article on the extent to which prosecutors will change crime theories in order to continue prosecutions even when the suspect has been excluded by DNA evidence. Soon after the article, Lake County Sheriff Mark Curran called for Mermel’s firing based on his belief that Mermel’s remarks undermined law enforcement and the justice system.

In a 2009 newsletter States Attorney Michael Waller had described Mermel as “a prosecutors prosecutor whose whole career is dedicated to seeking justice.”  However, the Chicago Tribune noted that in his recent announcement of Mermel’s retirement, Waller said, “The comments attributed to Mike Mermel do not reflect my views on the role of the Lake County State’s Attorney Office. Nor do they reflect the manner in which my staff has conducted itself over the last 21 years. The sole duty of my office is to seek justice.”

Days later on December 9, a unanimous Illinois Appellate Court reversed the rape/murder conviction of Juan Rivera, Jr.—imprisoned for nearly twenty years—based on a troubling lack of evidence. Mermel’s prosecution of Rivera had been based on a confession made after 24 hours of interrogation. Experts note that interrogations of this length are not reliable. The court ruled, “After viewing the evidence in the light most favorable to the Prosecution, we hold that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the State’s evidence was insufficient to establish guilt beyond a reasonable doubt, we must reverse the conviction of Juan A. Rivera, Jr.”

It’s rare to see an appellate court utilizing its discretion to reverse the factual determination of a jury and sending a message that the unbridled power of an overreaching prosecutor has gone too far.

Waller is not the only prominent elected district attorney who has dramatically distanced himself from a former colleague. In the earlier mentioned Morton case in Texas, Williamson County’s tough-on-crime District Attorney John Bradley also has been back peddling fast. He vigorously opposed DNA testing urged by the Innocence Project seeking to exonerate Michael Morton, whose wife Christine had been bludgeoned to death. The eventual testing linked the murder to a convicted felon. Morton was released from prison after serving 25 years for the crime.

But this was not the only bad news for D.A. Bradley. Alleged Brady violations (improperly withheld evidence supportive of Morton’s innocence) by his predecessor, Ken Anderson, not only may have contributed to Morton’s wrongful conviction but also to the real killer’s opportunity to murder again. The DNA at the Morton crime scene matches a hair found at the similar nearby later murder of Debra Masters Baker.

Ken Anderson, now a district judge, was for sixteen years Bradley’s predecessor as Williamson County District Attorney. Anderson hired Bradley. The two co-authored law books.  But in the wake of the Morton case revelations, Bradley’s relationship with Anderson disintegrated as he distanced himself from his former co-author, colleague, and mentor. Defense lawyers gained the unusual opportunity to issue subpoenas and question Anderson.

High-profile dramas of about-face such as these may signal that it has finally become too embarrassing and career-threatening for elected district attorneys to be associated with the costly conviction errors prompted by overzealous prosecutors.

In recent high-profile wrongful convictions, some prosecutors are paying the price of public scrutiny, outrage, and now even official inquiry. That has been rare in the past. Elected officials are distancing themselves from their former colleagues, cooperating with new efforts to uncover the truth, and even reflecting publicly on the proper role and culture for a prosecutor’s office.

The prosecutor’s job is to seek the truth, not just win convictions.  Perhaps Americans have seen enough conviction error and prosecutorial overreach. Perhaps we’re finally distinguishing the important difference between tough-on-crime and wrong-on-crime.

7 responses to “Tipping Point: Is America finally saying no to prosecutorial overreach?

  1. Nancy,

    This is refreshing. If prosecutors remain an elected political position (which provides all the wrong incentives to the job), it would be wonderful if there were more mechanisms for accountability. Unfortunately, 99.999% of the “voters” have no idea there’s even a problem.
    And let’s not forget the “poster boy” for prosecutorial overreach – Mike Nifong.

    Phil Locke

    • Phil,
      Thanks for weighing in on this. I grasp onto signs of progress and sense that more people are recognizing that we do have a problem. When enough voters “get it,” I believe that we will see more instances like these and a shift to less tolerance for prosecutorial overreach and misconduct. There are many ways to deliver accountability in the U.S,. and the voters may ultimately be the ones to tame rogue prosecutors.

      • justplainjim

        Hi Nancy,
        Let’s hope SOME entity tames them before some wannabe Jared Lee Loughner begins taking perceived rogues or their families or both, permanently out.

        I’m not holding my breath for the duscipli8nary bar to do the job.

        STRONG public exposure, criticism by the media and the caring attorneys, plus intense action by the electorate can lawfully eliminate this toxic waste from the criminal justice system.

        D J B, Columbus, Ohio
        ☺ A 49 year survivor of two rogue judges ☺

    • I can live with 99.46%
      I wonder what the % of judges and lawyers are clueless re the problem.

      Nifong is an anomaly in sanctions.
      Kellogg-Martin (Ohio) is not unknown in prosecutor sanctions.

      I was able to cause an eye blink in Lori Brown Esq. Disciplinary Counsel #2., when I explained that a “Bullet through the roof of the mouth – No Trial – No Appeal” sanction, was an excellent tool to motivate folks to refrain from lying, cheating or stealing.

      ☺ If » I « lie to or steal from you, I’ll loan you my .45 Colt M1911, but a bottle of good single malt Isley scotch and enough Diphenhydramine Hydrochloridesome is less messy to the environment and more peaceful to me, so I’ve been told by a microbiologist ☺

      Docile Jim Brady, Columbus, Ohio

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