Texas Inquiry Could Challenge Doctrine of Absolute Prosecutorial Immunity

A very rare court of inquiry underway in Texas will determine if Ken Anderson, who prosecuted and won a conviction of the innocent Michael Morton in the murder of his wife Christine, committed criminal acts in doing so. Anderson, now a district judge, is accused of failing to turn over to the defense substantial evidence of Michael Morton’s innocence as required by Brady vs. Maryland. Failure to do so can be reversible error in a case, but rarely has a prosecutor suffered personal liability for alleged violations.

If any case can focus public attention on the proper scope of prosecutorial immunity, it is this one. Morton spent 25 years in prison before DNA testing of a bloody bandana near the crime scene linked to a violent convicted felon. This DNA then linked to the murder of another young wife and mother, also bludgeoned to death in her bed, which occurred in the same region two years after Christine’s murder. The tragedy of Michael Morton’s separation from his three-year-old son, who grew up believing his father killed his mother, was compounded by another similar murder of a mother of two young children, while the innocent Morton languished in prison.

In addition to the DNA link to the felon, the recent investigation also revealed that powerful evidence of Morton’s innocence should have immediately dismissed him as a suspect and may have enabled authorities to apprehend the real perpetrator before he murdered again.

Prosecutorial immunity, a doctrine that protects prosecutors from frivolous and vindictive lawsuits, has been elevated in public discussion in the wake of DNA-proven wrongful convictions. Studies of this subset of cases — proven miscarriages of justice — have shown that in wrongful convictions, prosecutorial misconduct is more prevalent than most Americans would imagine.

The question raised by many of these cases is, “Should prosecutorial immunity extend to cases in which prosecutors have virtually framed an innocent person?”

If this question seems harsh, read Nina Totenberg’s article for NPR (November 4, 2009) entitled, “Can Prosecutors be Sued by People They Framed?” (here)

The Texas inquiry raises questions about the extent and spirit of our doctrine of prosecutorial immunity. Many believe that this is long overdue. Assuring fairness and true justice in criminal justice (and assuring the level of public safety that can only be achieved through accurate prosecutions and verdicts) is a daunting challenge even in a nation founded on the principles of fairness and equal justice for all. Our new awareness of prosecutors who would skirt their responsibilities with such tragic results, as seen in the Morton case and many others, requires that we rethink prosecutorial immunity.

Common sense alone suggests that the spirit of this important legal doctrine was not intended to cover criminal acts.

For daily coverage of this important inquiry, follow Brandi Grissom’s blog for the Texas Tribune (here).