When prosecutors get it wrong in the courtroom

AUSTIN (KXAN) – When Ken Anderson was sentenced to 10-days in jail for the prosecutorial misconduct leading to Michael Morton’s wrongful 25-year-imprisonment, there were grumblings the sentence was too lenient.

The grumblings grew louder when Anderson was released after just three days. But the Innocence Project knew that amount of time served was secondary to the fact there was a sentence at all.

“We should be quick to recognize a loud and powerful message was sent today,” said attorney Gerald Goldstein. “That is a message to prosecutors, to lawyers, to judges, across the country that we cannot tolerate this kind of intolerance.”

But history shows cases of misconduct often do go without much discipline at all. Even the very definition of misconduct is debated.

Different views

According to the Texas District and County Attorney Association, prosecutor misconduct is defined as “deliberately engaging in dishonest or fraudulent conduct to produce an unjust result.” However, the State Bar says misconduct can be an “act or omission by an attorney.”

The different perceptions are evident by two recent studies.

IN-DEPTH // Ensuring proper conduct

From a report by the Texas District and County Attorneys Association

  • The legal profession should encourage the use of a common-sense definition of “prosecutorial misconduct” that matches the public perception of conduct meriting remedial action. the subcommittee suggests the term should be defined as follows: “Prosecutorial misconduct occurs when a prosecutor deliberately engages in dishonest or fraudulent conduct calculated to produce an unjust result.”
  • The Texas District and County Attorneys Association should continue efforts to insure that all prosecutors are fully aware of their duties to seek justice by expanding its training to include digital/web-based materials and in-house office training programs.
  • Prosecutors should encourage law schools to include rules covering misconduct discussions in their mandatory ethics and criminal law courses, and the TDCAA should assist those schools in the development of that content as requested.

Source: Recommendations from “Setting the Record Straight on Prosecutorial Misconduct”


In a 2012 study examining Texas court cases between 2004 and 2008, the Innocence Project determined prosecutor error occurred 91 times without any repercussions from the Texas Bar Association.

“The bar, unfortunately, has been kind of a toothless tiger,” said attorney and former Travis County Judge Charles Baird.

However, TDCAA examined the same 91 cases and produced a rebuttal to the Innocence Project in which it found only six of the identified cases truly constituted misconduct. Among the findings in their report:

  • Some violations are the fault of law enforcement rather than prosecutors.
  • Public information from the state bar is not adequate to determine the effectiveness of prosecutor discipline.
  • Prosecutorial immunity is needed to ensure effective prosecution.

Human mistakes

“It is important for the public to distinguish between error and mistakes from what has become to be called prosecutor misconduct, most commonly,” said Travis County District Attorney Rosemary Lehmberg, who told KXAN she has never encountered deliberate prosecutor misconduct during her tenure.

“The consequences would be severe for a situation like what appears to have happened in the Michael Morton case,” Lehmberg said

However, she did say errors and mistakes have occurred.

“People make innocent mistakes,” said Lehmberg. “We review those because we do not want those to happen.”

One of those mistakes happened in one of Austin’s most notorious murder cases. Laura Hall was convicted of tampering with evidence for her role in the brutal 2005 murder and dismemberment of Jennifer Cave.

But her original five-year-sentence was thrown out and the sentencing phase was ordered to be retried after a judge ruled prosecutors Bill Bishop and Stephanie McFarland failed to give Hall’s defense team material evidence which may have effected a jury decision.

Lehmberg said she talked to the prosecution and determined it was simply an oversight. No mention of it was found in their employment files.

“I didn’t put anything in their personal files,” said Lehmberg. “The prosecutor just overlooked it.”

McFarland history

Attorney and former state District Judge Charles Baird is not so quick to dismiss the mistakes.

“It is not relevant whether they willfully withhold it or if they inadvertently withhold this information,” said Baird, who had his own experience with McFarland and questionable evidence.

Baird vacated the guilty verdict for Danish Sheikh’s 2007 aggravated assault case after he ruled McFarland withheld information concerning a resume for an expert witness.

“It is a constitutional duty that we demand of prosecutors because they are speaking for us. They are the state,” said Baird. “There are two shining examples out there where Miss McFarland did not live up to the high standard.”

But the subjective nature of prosecutor misconduct again came to light.

“(Baird) overreacted,” said Lehmberg. “I never thought (McFarland) made an error, and the courts agreed.”

An appeals court reversed Baird’s decision and reinstated Sheikh’s conviction. Still, Baird said it does not clear McFarland of wrongdoing.

“The (appeals court) only disagreement was whether or not it was material and effected the fairness of Mr. Sheikh’s trial,” Baird said, “not that it did not occur.”

McFarland’s employment file in the DA office shows no mention of any misconduct or reprimands for either the Hall or Sheik cases. Lehmberg supports her as a prosecutor and recently promoted her to lead prosecutor for juvenile court.

“I thought the branding of Stephanie McFarland was unfair,” said Lehmberg.

“I think highly of her as a prosecutor and I think the judge overreacted and branded that in a way it should not have been.”

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