There is a ton of press coverage over the exoneration of Michael Morton and the upcoming trials of former prosecutor Ken Anderson for prosecutorial misconduct, which is a huge problem here in Texas, but it will be interesting to see if press coverage picks up over the upcoming release of Kenneth Wayne Boyd, Jr. who has been freed by the Texas Court of Criminal Appeals this week after being convicted of three murders (a triple homicide) back in 1999.

There was no physical evidence to connect Mr. Boyd with the killings, though there was physical evidence of the crime.  There were weapons; there were fingerprints – neither were those of Kenneth Boyd.  His car had no evidence of the crimes.  There were no eyewitnesses to connect Kenneth Boyd to the murders.  Two jailhouse snitches told police that Boyd was involved but they changed their story long ago.  Boyd, meanwhile, maintained his innocence and passed a polygraph.  There were witnesses to Boyd being someplace else at the time of the murders, too.

Boyd was nevertheless arrested, charged and convicted of three homicides and sentenced to life imprisonment over 15 years ago.  Seems that the prosecutor got that conviction after, it has now been revealed that she withheld reports that another person was the person who was really guilty of the murders; that she suppressed letters that were sent by the witnesses taking back their stories; and that she knew of a failed polygraph test that implicated someone else for these crimes.

Instead of revealing these facts, Karren Price hid them — and not only that, but Shelby County District Court Judge Charles Mitchell in his underlying order in the exoneration case ruled that Price intentionally introduced false evidence in Boyd’s trial in addition to suppressing evidence.   Judge Mitchell heard the case after the new Shelby County District Attorney, Ken Florence, reopened the case after Boyd’s lawyer filed an appeal.

The Court of Criminal Appeals has acted on a Writ of Habeas Corpus based upon prosecutorial misconduct by Shelby County District Attorney Karren Price. Relief was granted by the High Court on November 14, 2012.

From the Per Curiam Opinion:

Applicant was convicted of capital murder and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction. (1) Applicant subsequently filed an application for writ of habeas corpus pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. In it, he contends that he was denied his rights under the Confrontation Clause, that the State withheld favorable evidence from the defense, that the State knowingly presented false testimony, and that newly discovered evidence demonstrates that he is actually innocent of this offense.

The trial court determined that Applicant’s claims are meritorious, and recommends that his conviction be reversed. The trial court notes that Applicant raised his Confrontation Clause claim on direct appeal and that the court of appeals held that there was error but found that the error was harmless in light of other evidence, including the testimony of two jailhouse witnesses. However, the newly discovered evidence presented by Applicant in this application includes affidavits from both jailhouse witnesses recanting their testimony. The trial court finds that, in light of the recantations of the two witnesses upon whose testimony the court of appeals relied to determine the Confrontation Clause violation was harmless error, the court of appeals’s harm analysis should be revisited. Noting that the other evidence presented by the State at Applicant’s trial was “weak,” the trial court finds that the Confrontation Clause violation was harmful error.

Applicant alleges that the State failed to disclose material, exculpatory evidence to the defense. Applicant also raised some of these allegations on direct appeal, but the court of appeals agreed with the State’s contention that Applicant was attempting to raise matters outside the appellate record. In this application, Applicant presents materials that were found in the State’s file by the newly elected District Attorney after the trial prosecutor left office. The newly elected District Attorney, believing that the materials might constitute Brady material that was not disclosed to the defense, provided those materials to Applicant’s attorney after his trial. Applicant now alleges that this newly available evidence was material and favorable to the defense. The trial court agrees, concluding that in light of the record as a whole, there is a reasonable probability that, had the evidence been disclosed, the outcome of Applicant’s trial would have been different.

Applicant also alleges that several of the State’s witnesses at trial testified falsely, as revealed by their recantations and the newly available evidence contained in police and polygraph examination reports, some of which were not provided to the defense prior to trial. The trial court finds that several of the State’s witnesses testified falsely and that the trial prosecutor was aware of the falsity of their testimony. The trial court concludes that there is, at the very least, a reasonable likelihood that the false testimony presented by the State’s witnesses at Applicant’s trial affected the outcome of the trial.

Finally, in light of the newly discovered and newly available evidence presented by Applicant and its probable impact on the State’s case as a whole, the trial court concludes that Applicant has proven by clear and convincing evidence that no reasonable juror would have voted to convict him.

We disagree with the trial court’s conclusion that Applicant is entitled to relief on his actual-innocence claim. We have held that “when an applicant asserts a Herrera-type [actual innocence] claim based on newly discovered evidence, the evidence presented must constitute affirmative evidence of the applicant’s innocence.” (2) None of the newly discovered evidence presented in the habeas proceedings constitutes affirmative evidence that Applicant did not in fact commit the crime. Rather, all of this evidence simply impeaches inculpatory evidence that was presented at trial.

But we agree with the trial court that Applicant is entitled to relief on his favorable-evidence and false-testimony claims. Consequently, we grant relief. The judgment of conviction in the instant cause is set aside, and Applicant is remanded to the custody of the Sheriff of Shelby County. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

While the Court of Criminal Appeals does not shut the door to further proceedings against Mr. Boyd, it is likely that the case against Kenneth J. Boyd will be dropped by Shelby County, especially in view of the new District Attorney’s earlier actions to help this innocent man be freed.  Mr. Boyd was promptly released from jail though technically on a personal recognizance bond until the legal strings get tied up.

Next question:  what happens to Karren Price???

In Texas, prosecutorial misconduct is a serious issue.  Innocent people are put behind bars by district attorneys who are either incompetent or overzealous here in Texas.  We monitor stories of district attorneys and prosecutors for the state doing bad jobs, either negligently or with outright intent.  Rogues are out there.

It happens a lot.  Consider our list of innocent folk who have been wrongfully convicted here in Texas – and this isn’t a complete list by a longshot.

Research Into Prosecutorial Misconduct in Texas Finds Misdeeds by DAs Resulting in Wrongful Convictions

Investigations are being done.  Recently, there was a 500+ page report issued by the United States District Court in the Ted Stevens matter: you can read online, in detail, all about the scary examples of prosecutorial misconduct found by that special court-ordered investigation.

There’s even been a state-wide summit on this issue which has received national attention – a spotlight deserved in no small part for speakers like Michael Morton, an innocent man released from prison after spending many years there all due to prosecutorial misconduct.  Mr. Morton has just begun giving speeches in support of prosecutorial conduct reform, his first speech given around a week ago to the Longview Greggton Rotary Club where he argued that the Texas Legislature needs to step up and make sure that bad prosecutors are disciplined and made to answer for their bad acts.

In a related matter, an official Court of Inquiry was set up regarding Michael Morton’s wrongful conviction – and according to Court Order, that inquiry was set to begin on September 11, 2012.

Texas Prosecutors Organization (TDCAA) Issues Its Own Findings

Now, the organization that represents prosecutors and district attorneys in the State of Texas has responded to all this concern.  The Texas District and County Attorneys Association tells us that it has done its own 8 month study of prosecutorial misconduct leading to wrongful convictions and based upon its research, things aren’t so bad as they’ve been portrayed.  You can read their press release here.

From their report:

• Finding 1: claims of widespread prosecutorial misconduct are vastly overstated.
• Finding 2: in the small number of cases involving actual misconduct by prosecutors, the central issue is often inadequate disclosure of exculpatory or impeaching information (called Brady information).
• Finding 3: some Brady violations are committed by law enforcement officers, not prosecutors.
• Finding 4: law schools typically do not teach Brady as part of their core ethics and criminal law curricula.
• Finding 5: cognitive bias can play a negative role in prosecutor decision-making.
• Finding 6: Public information available from the State Bar is inadequate to assess the effectiveness of the State Bar’s discipline of prosecutors.
• Finding 7: Prosecutorial immunity is necessary to ensure independent and effective prosecution in our adversarial system.
• Finding 8: Misidentifications by eyewitnesses are the leading cause of wrongful convictions, accurate forensic science is vital to ensuring confidence in criminal convictions.
• Finding 9: The professionalism of Texas prosecutors has improved in the last 30 years due to increased state funding and cooperation with other allied entities, but high caseloads and other demands threaten that progress.

So, according to the Prosecutors Group, the concerns everyone has able prosecutorial misconduct is just silly – maybe even a “witch hunt”??  According to their report, concern is “vastly overstated,” and when innocent people go to jail it seems that it’s mostly the fault of eyewitnesses getting it wrong (“misidentifications by eyewitnesses are the leading cause of wrongful convictions”) or sometimes the blame lies with the police officers who fail to follow Brady (see finding 3).

Really?  REALLY?

(Read the response of the Prosecutorial Oversight Coalition to this new report here.)