The racist prosecutors who run U.S. courts

IN EARLY June of this year, the State Bar of Texas stripped Charles Sebesta of his law license and formally disbarred him. His crime? Prosecutorial misconduct that led to the wrongful conviction of exonerated death row prisoner Anthony Graves.

Graves was released in 2010 after spending 19 years in prison and on death row. A federal appeals court had ordered a new trial for him in 2006, and over the intervening years prosecutors in Washington-Burleson county found that they had no credible evidence with which to re-try and convict him. The main witness against Graves had recanted his testimony and claimed that Sebesta had coerced him into making false statements.

Since his release, Graves has fought for Sebesta to be sanctioned. For his part, Sebesta continued to make claims about Graves' guilt to the media as recently as January. Taking advantage of a new law, Graves was finally able to file a grievance against Sebesta, resulting in an investigation and subsequent hearings which culminated in the former prosecutor's expulsion from the bar.

Speaking to Texas Monthly's Executive Editor Pamela Colloff after the decision, Graves said, "I never thought that a young, African American man from the projects could file a grievance against a powerful, white DA in Texas and win."

Prosecutors facing consequences for misconduct is very rare. They hold one of the most powerful positions in the criminal justice system and have operated with very little scrutiny for decades. But that is starting to change.

This year has seen an explosion of outrage at the murders of unarmed people of color at the hands of the police. The anger at the cops has been coupled with an outcry against the unwillingness of prosecutors to pursue charges against police officers in cases like those of Eric Garner in New York City or Mike Brown in Ferguson, Missouri.

Now, questions are coming to the fore about how prosecutors fit into the racist system of criminal justice that many call the New Jim Crow.

A new study released by the Women Donors Network (WDN) reveals that out of 2,437 elected prosecutors, 95 percent are white and 79 percent are white men. Sixty percent of states have zero elected Black prosecutors. In 14 states, all elected prosecutors are white.

Discussing the reason for the study, WDN President Donna Hall said:

Americans are taking a new look at the relationship between race, gender and criminal justice--in the failures to indict police officers from Ferguson to Staten Island, the rogue prosecutions of women who terminated their pregnancies from Indiana to Idaho, and in the epidemic of mass incarceration. Elected prosecutors have an enormous influence on the pursuit of justice in America, yet 79 percent of them are white men whose life experiences do not reflect those of most Americans.

Prosecutors have enormous power in the criminal justice system. After someone is arrested, prosecutors' discretion allows them to decide whether to file charges, what charges to file and what kinds of sentences to pursue. There is no oversight over their offices and little data is collected on how their decisions are made.

It has been historically hard to prove racial bias among prosecutors because of this lack of data. But the raw numbers regarding incarceration are revealing: While Black people make up only 13 percent of the population, 37 percent of people in prison are Black. Meanwhile, Black men are six times more likely to be incarcerated for the same crime as their white counterparts.

Post-conviction, the same disparities continue in sentencing. According to the U.S. Sentencing Commission, sentences for Black defendants are 10 percent longer than those for white defendants convicted of the same crime. Black defendants are 21 percent more likely to be given mandatory-minimum sentences than whites.

Perhaps nothing is more revealing of the racial bias in sentencing than the way that death sentences are imposed. People of color are vastly overrepresented on death row as compared to the U.S. population, accounting for 43 percent of the executions carried out since 1976.

Study after study has shown that the race of the victim is the biggest determining factor in a potential death penalty case. White victims make up half of all murder victims, yet 80 percent of death penalty cases involve a white victim. In the 1,412 executions carried out since 1976, just 31 cases have involved a Black victim and white defendant. It seems that in the eyes of prosecutors, some lives matter more than others.

Prosecutors alone decide whether or not to seek the death penalty. For many prosecutors, winning death penalty convictions meant a boost to their political careers. This political benefit has often resulted in egregious misconduct by prosecutors, such as suppressing evidence, coercing witnesses through plea deals and excluding people of color from juries.

The Supreme Court outlawed discrimination in jury selection in the landmark Batson vs. Kentucky decision in 1986. Under the decision, defendants are allowed to challenge a decision to strike a juror if it seems like it was motivated by race. However, all prosecutors have to do is argue that they struck a juror for some other "race-neutral" reason, and then it's up to the judge to decide whether it was an improper strike. Over the years, a system of devising "race-neutral" reasons to target jurors of color has been rampantly abused.

This June, the high court agreed to hear the case of Timothy Tyler Foster. Foster was convicted in Georgia by an all-white jury--an all-too-common scenario in a murder case involving a Black defendant and a white victim. The state's claim that race played no role in striking jurors is comical, as Foster's lawyers have discussed in their petition to the court which highlights the prosecution's notes from jury selection:

(1) marked the name of each Black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word "BLACK" next to the "Race" question on the juror questionnaires of five Black prospective jurors; (3) identified three Black prospective jurors as 'B#1,' 'B#2,' and 'B#3'; (4) ranked the Black prospective jurors against each other in case "it comes down to having to pick one of the Black jurors"; and (5) created strike lists that contradict the 'race-neutral' explanation provided by the prosecution for its strike of one of the Black prospective jurors.

As recently as 2004, prosecutors in Texas were given instructions on how to exclude people of color from juries using "race-neutral" pretenses.

Prosecutors' unique place in the justice system has led to other, more grotesque abuses of power. For example, a culture of celebrating death sentences in district attorneys' offices is common, especially in the South.

One of the most notable examples is in Jefferson Parish in Louisiana. In 2003, as a murder trial for Lawrence Jacobs, Jr. began, parish prosecutors walked into the court wearing macabre neckties--one featuring the grim reaper and another depicting a noose. When the defendant's father objected, the men were told by superiors to remove the ties. There were however no further sanctions, although prosecutors had apparently worn the ties at a number of previous court proceedings.

The New York Times reported in 2003 that the Jefferson Parish office also regularly held parties after they obtained a death sentence. The office took up a collection to buy a plaque with the name of the condemned person and a picture of a needle. One defense attorney reported seeing the plaques in the office of a prosecutor-turned-judge.

Other outrages included a prosecutor in nearby Orleans Parish who kept an electric chair on his desk, an office in Texas that formed a "Silver Needle Society," and an office in Baton Rouge that celebrated death sentences at office parties replete with steak and Jim Beam.

While gruesome, these displays are just the most outward manifestation of an outlaw culture among prosecutors, who are rarely sanctioned for their role in wrongful convictions.

In 2003, the Center for Public Integrity looked at more than 11,000 cases involving misconduct since 1970. They found that in only about 2,000 cases did an appeals court find that prosecutorial misconduct warranted the overturning of a conviction. Fewer than 50 prosecutors were sanctioned professionally for their actions.

In 2010, USA Today published the results of an investigation of 201 federal cases concerning misconduct by prosecutors. They found that just one prosecutor "was barred even temporarily from practicing law for misconduct."

The disbarment of Charles Sebesta is an important case of what could be a growing trend of prosecutors facing the music for their misuse of the law.

The sanctioning of Sebesta came only a few years after the criminal conviction of another Texas prosecutor, Ken Anderson. Anderson presided for years as the district attorney--and later served as judge--in Williamson County, just outside of Austin, Texas. But it was his role in the wrongful conviction of Michael Morton, who spent 25 years in prison for a crime he didn't commit, that made Anderson infamous.

Anderson went to trial in 2013, accused of hiding crucial evidence of Morton's innocence. He was found guilty, stripped of his law license and, in an unprecedented decision, sentenced to 10 days in jail. While he ultimately served just three of those days, the move sent shock waves through the system. Pamela Colloff reported extensively on the outcome of the case. "Regardless of whether justice was served, a single, extraordinary fact...will ensure accountability," she wrote in Texas Monthly. "Innocence Project director Barry Scheck told reporters that the current Williamson County D.A., Jana Duty, had agreed to allow an independent review of every single case that Anderson had ever prosecuted. The audit will hopefully answer the question that many people have wondered since Morton's exoneration in 2011. Was Anderson's misconduct in the Morton case the exception or the rule? "

Anthony Graves is hopeful for a similar outcome for Sebesta. As he told Colloff in June, "I think this is a great first step. But a lot of people in Washington and Burleson counties were prosecuted and convicted by Charles Sebesta, and some of them are still behind bars. All of those cases need to be examined, too."

The sanctioning of these prosecutors in Texas, combined with the report from WDN, raise real questions about how prosecutorial misconduct can be combatted. Some commentators have called for more diversity in prosecutors' offices. Bryan Stevenson of the Equal Justice Initiative made this case in an interview with NPR in early July. Discussing the fact that most district attorney candidates run unopposed, he said, "There's no one running against them. I think that we can do some things to turn this around. I think, first of all, district attorneys in position today have the opportunity to begin prioritizing diversity and identifying people within their offices who are women and people of color to succeed them."

Stevenson also addressed some of the reasons people of color don't pursue jobs as prosecutors: "I actually have had lots of students and others enter the prosecution profession. They say 'I want to change things from the inside.' And what they typically report is that the culture of many of these offices is so hostile to being more responsive to the needs of poor people and people of color that they can't make the change that they seek."

Most would argue that more diversity in the profession is needed. Yet there are limits to how effective an electoral strategy can be. Since the civil rights movement, the strategy of electing more people of color to political office hasn't necessarily led to improved conditions in the communities they serve.

In 1970, there were just 1,469 Black elected officials in the U.S. Today there are over 10,000. But by many indices, the condition of Black life in America has stagnated or worsened in this time period. Poverty in the Black community is still double the national poverty rate, for example, and the homeownership rate among Black people has remained stagnant since 1970.

Police departments have also diversified--but the "thin blue line" continues to prevail. Police culture is still dominated by a culture of closed ranks, as we have seen in virtually every police murder that's made the news.

The advent of the Black Lives Matter movement has posed a real challenge to police culture--which also has the potential to push prosecutors to take action in cases of police killings. The indictment and conviction of officer Johannes Mehserle, who killed Oscar Grant in Oakland in 2009, is one example of the difference a movement can make in pushing prosecutors to do the right thing.

Meanwhile, there are fights for policy reforms, especially at the state level. In Texas, the high-profile shenanigans of Ken Anderson and Charles Sebesta led to the Michael Morton Act, enacted in 2013, that takes aim at prosecutors' abuse of the Brady Rule, which requires prosecutors to hand over any evidence that might be favorable to the defense. But the rule is written in such a way that prosecutors have tremendous discretion in deciding what they think constitutes Brady evidence. Suppression of evidence is rampant under the system, something the Morton Act aims to change.

As Pamela Colloff stated:

The key thing the Act does is force every DA's office to have an open file policy--meaning that all prosecutors must hand over every piece of evidence they collect, no matter what. Now they can no longer do things like withhold witness statements.

Of course there's always going to be prosecutorial discretion. You can't take that out of the equation. But if you enact reforms which require prosecutors to be more transparent, that could help change the win-at-all-costs culture that exists in some DA's offices. These sorts of reforms need to be enacted not just in Texas, but nationally.

Colloff also highlighted the change in the public's perception of prosecutors, and the need for state bars to take action against unscrupulous officials:

There's been a huge shift in the way people view prosecutors--they do believe there are prosecutors that are guilty. Now the Texas State Bar has belatedly and begrudgingly shown that it will take decisive action against prosecutors that don't play by the rules, including powerful elected district attorneys.

Such campaigns for reforms like the Michael Morton Act in Texas, linked with the growing movement against police killings, show the way forward in the struggle to combat racism in the criminal justice system--and, ultimately, to dismantle the New Jim Crow.