Last night the TV show 60 minutes aired a segement on prosecutorial misconduct in a case in Texas in which the defendant was recently exonerated (after 25 years in prison) by DNA evidence. It has been alleged that the prosecutor in the case knowingly withheld evidence it was legally obligated to disclose to the defendant's lawyers. The prosecutor is now a judge and, according to the show, currently under investigation for the incident. Here is the full segment. It lasts about 14 minutes, but there are a couple of commercials within it. Pay attention to the prosecutor's "apology" (at about the 8 minute mark). He apologizes because "the system" failed, but then denies any misconduct on his part. I wonder which part of the system he means failed? I have more comments below. Please continue reading after you watch the video. If, for some reason you can't see the video below, you can watch it here.
It seems to me that the real issue in this case starts with the question of whether the evidence that was allegedly withheld was "exculpatory." Note in the video that the attorneys for the defendant argue the evidence would have proven the defendant was innocent while the current lawyer for the former prosecutor claims it would not have.
If the evidence was "exculpatory", then the prosecutor had a duty to disclose it. Since there is evidence he did not disclose it, that would lead you to conclude that he acted in violation of his duty. Note that under the current Model Rules, the prosecutor would clearly have a duty to disclose the documents in question because the duty under the MRs is broader than the duty under previous case law (namely Brady v Maryland).
The problem with the discussion of the issue by the lawyers in the video is that whether the documents would have proven the defendant innocent is actually irrelevant. "Exculpatory" does not mean that it would have exonerated the defendant or proven that the defendant was not guilty. It only means that there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Kyles v Whitley, 514 U.S. 419 (1995).
Based on this, I think the evidence was exculpatory and that, therefore, there was a duty to disclose the information.
The statement by the current lawyer for the then-prosecutor that a claim that his client engaged in unethical conduct is "unwarranted" is ridiculous. Given the facts, the claim is clearly warranted. Also, it bothers me that the lawyer claims we are dealing with "speculation" about things that happened 25 year ago. Yet, here is one thing that does not seem to be speculation: the defendant did not get the documents. No one - not the prosecutor/now judge nor his lawyer - disputed that. The only thing they claim is that the prosecutor now says he could not believe he wouldn't have had a conversation with the defendant's attorney about the case. He did not claim that he did in fact disclose the information. As to that the best he could do was to say he did not remember.
UPDATE 4/21/13: A judge has decided there is sufficient evidence that the former prosecutor should be tried for criminal contempt, tampering with evidence and tampering with government records. He said Anderson concealed the availability of exculpatory evidence. Go here for more details.