Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
As I embark on my presidency and undertake an important new initiative, I want NACDL members to know that the impact of prosecutorial misconduct on justice was something I witnessed firsthand early in my career. My decision to become a state and federal prosecutor was not driven entirely by a single-minded commitment to law and order. First, as a neophyte who fashioned himself as a change agent during the mid-1970s, I wanted to be in the room and have a voice on behalf of those who had not historically been heard from when charging decisions are made. I believed that my presence as a Black attorney would balance the scales of justice and ensure that my fellow Black citizens were not unfairly targeted. Second, I heeded the advice of one of my Baylor Law professors and sought immediate trial experience, which the prosecutor’s office provided. I knew I needed the requisite trial experience before venturing out on my own as a criminal defense lawyer, which was my goal.
In setting out on this phase of my legal career, I had no idea of the power I was to wield during the coming years. And of course, this power paled in comparison to that of my bosses, the Galveston County Criminal District Attorney and, eventually, the United States Attorney for the Northern District of Texas. Overall, the experience was positive as I learned to navigate the complexities of the system and honed many of the skills I have applied as a defense lawyer. Like any other profession, there are those inside the prosecutors’ offices around this country who are misguided, overzealous, or prone to exploit the power they have been handed. In my own career, I saw colleagues take advantage of their role and act inappropriately toward defense counsel and especially the accused. I look back and believe that professionalism amongst my colleagues was the norm, but I recognize that one bad prosecutor can destroy a lot of lives, and our system simply does not do enough to address this reality.
My orientation and training for my prosecutorial positions were void of any rules, standards, and best practices related to overreach and possible misconduct. As prosecutors, we had to rely upon our own individual moral compass after taking the solemn oath to faithfully execute our duties and to defend and support the Constitution. However, a watershed moment in my career occurred during my stint in Galveston when a few of us were tasked in 1976 to attend a prosecutors’ conference being hosted by the Dallas County District Attorney’s Office. Chief prosecutor Jon Sparling had authored a memo on jury selection that blatantly stated prosecutors should take steps to ensure that minorities and women were excluded from their jury panel. Angry and deeply offended, I sought out Larry Baraka, an African American Dallas County assistant district attorney, who was also in attendance. Larry assured me that he was going to speak to his superiors about this practice in order to eliminate it. We know that it did not stop until the 1980s.{1} 1 See Andrew Hammel, Discrimination and Death in Dallas: A Case Study in Systematic Racial Exclusion, 3(2) Texas Forum on Civil Liberties and Civil Rights 187 (1998). This racist and sexist memo on jury selection eventually led to the Supreme Court overturning a death penalty verdict in Miller-El v. Dretke.{2} 2 Miller-El v. Dretke, 545 U.S. 231 (2005). In an ironic twist, I was appointed in 2008 as special prosecutor in the retrial of the case, which led to a plea bargain for a life sentence for Mr. Thomas Miller-El.
Like most of you, over the course of my career as a defense lawyer I have experienced prosecutorial misconduct in some form. My experiences of late tell me that it is an anomaly for a criminal defense attorney to not recall experiencing some form of misconduct by a prosecutor, whether it be at the state or federal level. For decades, NACDL has been at the forefront in addressing this endemic issue.
Last fall I decided to take us a step further as president-elect by forming NACDL’s Task Force on Prosecutorial Accountability. Its co-chairs are Rob Cary, a partner with William & Connolly, LLP, a fellow at the American College of Trial Lawyers, and author of “Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens”; Mike Ware, former head of the Conviction Integrity Unit of the Dallas County District Attorney’s Office and currently the executive director of the Innocence Project of Texas; and Ellen Yaroshefsky, co-chair of NACDL’s Ethics Committee, Professor at Hofstra University School of Law, and widely published author on the topic. The remaining members of the Task Force are Ramon “Ray” de la Cabada, James “Jim” Felman, Shana Fulton, Nicole Hochglaube, Stephen Ross Johnson, David Markus, Amy Richardson, Addy Schmitt, and Cheryl Wattley. In addition to these attorney members, we have Anthony Graves, who spent 18 years in a Texas prison, including 12½ years on death row. Anthony experienced the inconceivable nightmare of two execution dates. He is now employed by the Harris County Public Defender’s Office as the chief community liaison, and he is the founder of the Anthony Graves’ Foundation. Anthony’s story is one of inspiration and resilience. He also is a reminder of how racial bias, both explicit and implicit, plays an outsized role in this area. His eloquence, experience, and expertise have been invaluable to the task force.
The mission of the task force is as follows:
Prosecutorial misconduct undermines truth-seeking by, and public confidence in, our criminal legal system and contributes significantly to wrongful convictions. For this reason, the task force will investigate the impact of unethical or illegal tactics by prosecutors, including withholding of favorable evidence, use of unreliable informants, taking unreasonable and obstructionist positions in post-conviction claims of actual innocence, and other unfair tactics. The task force will explore and develop solutions, including legislation, policies, and practices, to promote prosecutorial accountability.
To complete this mission, the task force will be collecting and reviewing qualitative information and empirical data to identify workable solutions. The task force’s conclusions will be set forth in a white paper to be published next summer. The target audience for this publication will extend beyond our fellow defense counsel to include prosecutors, judges, policymakers, and the public. During my Presidential Retreat held on June 1, we gathered at NACDL headquarters in Washington, D.C., where we heard from our co-chairs and Anthony Graves. We also heard presentations from Natasha Perdew Silas, co-dean of the National Criminal Defense Lawyer’s College, on the history of Brady v. Maryland and litigating Brady violations; U.S. District Judge Richard Boulware of Nevada on judicial initiatives involving prosecutorial misconduct; and Barry Scheck on the culture and integrity of prosecutors’ offices. Barry also presented on considering prosecutorial misconduct for purposes of “sentinel event review,” an effort to uncover and correct institutional failures.{3} 3 See Radley Balko, What If We Treated Wrongful Convictions and Bad Police Shootings the Way We Treat Plane Crashes? (June 8, 2023), https://radleybalko.substack.com/p/what-if-we-treated-wrongful-convictions.
In confronting the misconduct of prosecutors, we must also turn the mirror on ourselves to see if we are up to the task of litigating it, making the necessary record to preserve it, while also seeking to guard our clients from the potential fallout from our zealous efforts. I am keenly aware of the many scholarly articles published on this issue over the years. Our efforts will supplement these prior good works with meaningful solutions. We are a vigilant and determined bunch, who, in our representation of the powerless, routinely confront the powerful day after day. With this same spirit, we must propagate and enforce norms and rules that punish those who engage in the improper methods that infect our system to deter future similar actions. It is our sworn duty to do so.{4} 4 See Robert A. Gottfried, The Anatomy of Our Oath, available at AmericanBar.org Young Lawyer Resources, https://www.americanbar.org/groups/young_lawyers/resources/after-the-bar/professional-development/anatomy-of-our-oath/.
Please feel free to email your experiences and suggestions to me or NACDL Director of Economic Crime and Procedural Justice Nate Pysno so that we, as the largest criminal defense organization, can gather the data and the research to help support our brothers and sisters around this country in the fight for true justice on behalf of the accused.
About the Author
Michael P. Heiskell is the owner of Johnson, Vaughn & Heiskell in the Fort Worth-Dallas, Texas area. He represents individuals and entities in state and federal courts throughout the country, with an emphasis on white collar investigations and prosecutions. He is a past president of the Texas Criminal Defense Lawyer’s Association.
Michael P. Heiskell (NACDL Life Member)
Johnson, Vaughn & Heiskell
Fort Worth, Texas
817-457-2999
mheiskell@johnson-vaughn-heiskell.com
www.johnson-vaughn-heiskell.com
