September-October 2012

Setting the record straight

William Lee Hon

Criminal District Attorney in Polk County

Recent media reports and a study by the Northern California Innocence Project claim that prosecutorial misconduct is rampant in Texas, so a TDCAA subcommittee tackled the “evidence” to see if all the brouhaha is justified. Here’s what we found.

In September 2012, the TDCAA Board of Directors released a first-of-its-kind report produced by the TDCAA Training Subcommittee on Emerging Issues. A link to that full report (and all of the supporting documents) can be found on the front page of the TDCAA website at This is a must-read document for every member of a prosecutor’s office.

    This association, through its many committees, addresses the legal issues of the day with training and support tailored for a prosecutor’s office. I think this member-driven effort has been very effective. But we have all seen the dark clouds on the horizon as issues surrounding exonerations, eyewitness identification, forensic science, and allegations of widespread prosecutor misconduct continue to swirl. In December 2011, the TDCAA board decided it was time to thoroughly examine these issues, with an eye toward improving our profession. It was the view of the board that, acting through TDCAA, we could enhance the quality of criminal justice in Texas.

      On the same day the subcommittee held its second meeting, the Northern California Innocence Project released a list of 91 cases of alleged prosecutorial misconduct in Texas, contending that the State Bar failed to discipline the prosecutors responsible for said misconduct. Although most research up until this point indicated that misidentification and faulty science were at the heart of the vast majority of exonerations, this Innocence Project apparently decided to go in a new direction. TDCAA’s subcommittee thought it was important to look very carefully at the Innocence Project’s list of cases to see if the claims of widespread prosecutorial misconduct had merit.

    I suspect that the results of this careful study of the Innocence Project’s list will not surprise you. Its claims were so overblown that the subcommittee believed that all members of our association, as well as representatives of other Texas criminal justice entities, should have a detailed rebuttal of those unfounded claims.

    Notwithstanding the overstated claims of misconduct detailed in the report, the subcommittee members believe that any prosecutor misconduct is unacceptable and should be addressed. The subcommittee took a serious look at the issue of prosecutor conduct in the context of the most troubling cases on the list. They researched cases, interviewed various people involved in criminal justice, and studied legal treatises. In those few cases of concern, it appears that inadequate disclosure of exculpatory evidence, often exacerbated by a closed-file office policy, played a central role. In many instances of inadequate disclosure, the evidence remained in the hands of law enforcement and was unknown to the prosecutor.

    Importantly, the subcommittee recognized that there is emerging research into the concept of cognitive bias (or “tunnel vision”) which may play a role in prosecutor decision-making. This potential bias deserves further attention. Finally, the subcommittee recognized that times have changed: Prosecution as a profession has advanced significantly since the passage of the Professional Prosecutor Act in 1979. It would be a mistake to judge the state of today’s prosecutor offices on cases tried three decades ago.

    What emerged from the subcommittee’s work was a unique document that squarely addresses the overblown allegations of the Innocence Project but also makes serious recommendations for the TDCAA board, committees, and staff to follow in developing additional programs, training, and resources for the benefit of our profession. Because issues and cases concerning exonerations will likely continue to be a topic of interest, the TDCAA board believed it was important to publish the report and make sure that every person working in a prosecutor’s office takes the time to read it. I invite you to do so.

    I am proud of our profession, and I believe that what each of you do on a daily basis makes a difference in the lives of all Texans. We have a duty to be the best we can be at our jobs, and the association is going to work its hardest to help you in that effort.