The Battle for Reform

California lags behind some of the most conservative regions in the country when it comes to holding prosecutors to account for misconduct.

- In Texas, a wave of convictions overturned on the basis of DNA tests prompted a series of reforms. Craig Watkins won election as Dallas County DA in 2006, and he quickly created the Conviction Integrity Unit. The unit, along with the Innocence Project of Texas, cleared up more than 400 cases of inmate-requested DNA testing that had languished in the county.

The wrongful convictions also led two Texas lawmakers to introduce measures in 2008 that would make it a crime to suppress evidence favorable to a defendant and eliminate the statute of limitations for violations. Both measures were opposed by state prosecutors and died in committee, but the bills' sponsors plan to try again in 2010.

Last year the Texas legislature also considered a bill to require open-file discovery, or letting the defense see everything except prosecutors' work product. "Some people's idea of open discovery is: 'I'll read the police report to you, and don't take notes while I do it,' " says Mike Ware, who heads Dallas County's Conviction Integrity Unit. "We allow them to make a copy of the whole file." The open-file measure was voted out of committee but too late in the session for full consideration. It, too, will be reintroduced next year.

- In Las Vegas, a federal judge dismissed a 64-count stock-fraud case last year after J. Greg Damm, an assistant U.S. Attorney, was accused of concealing exculpatory evidence. And in Miami, Florida, a federal judge censured three assistant U.S. Attorneys in April for alleged witness tampering and illegally using informants to tape defense lawyers. The judge ordered the government to pay $600,000 in defense fees for the defendant, a doctor acquitted of illegally prescribing painkillers (U.S. v. Shaygan, No. 08-21112 (S.D. Fla. April 29, 2009) (order imposing sanctions)).

"There is an easy way to fix the federal system-open- file discovery," says David O. Marcus, a principal at Marcus Law and one of the lawyers secretly taped in the Shaygan case. "Prosecutors should be required to show the defense all the evidence, good and bad."

- In 2004 the North Carolina legislature took just such steps. It mandated an open-file discovery system after public outcry over the wrongful conviction and death sentence of Alan Gell. On appeal, Gell's conviction was overturned because of exculpatory evidence that had been withheld; in a 2004 retrial he was acquitted.

The state legislature's action helped expose misconduct in the infamous Duke University rape case in 2007. Durham County District Attorney Michael Nifong's mishandling of the prosecution of lacrosse team members who had been falsely accused led to his disbarment and subsequent personal bankruptcy. Nifong was accused of hiding excul-patory evidence.

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