Prosecutors should not have to choose between job, justice

We hear a lot about the bad prosecutors — the corrupt, incompetent few whose mishandling of highstakes criminal cases sometimes seem to give the job a bad name.

In those cases, I’ve often wondered: Where were the good guys? When a rotten prosecutor was intimidating witnesses or refusing to hand over evidence to the defense, why didn’t an ethical colleague or honest cop blow a whistle or at least refuse to go along? The case of Eric Hillman gives us a clue. The former Nueces County prosecutor claims his insistence on doing the right thing in a 2014 case cost him his job.

Hillman alleges in a wrongful termination lawsuit that he was fired for refusing a supervisor’s order to violate the law by withholding evidence. Hillman’s case was tossed out by lower courts, which cited Texas’ sovereign immunity against such lawsuits.

But now that the Texas Supreme Court has since been asked to weigh in, the case is prompting questions beyond the fairness of Texas employment law. It compels Texas’ highest civil court to decide just how serious the state is about holding prosecutors accountable and avoiding wrongful convictions.

So vital are these concerns that last week, Hillman got support from an unlikely source: the New York-based Innocence Project. The group, which has been instrumental in about 200 exonerations, is usually in the business of representing the wrongfully convicted, not prosecutors.

In the brief, filed in conjunction with the Innocence Project of Texas, the groups say Hillman’s case poses a “critical test” of the state’s commitment to the fundamental principles behind Texas’ Michael Morton Act, which essentially codified

case law requiring prosecutors to turn over any evidence that can aid the defense.

The act is named for a Williamson County man wrongfully convicted of killing his wife. Morton spent nearly 25 years in prison before DNA evidence proved his innocence, identified the real killer and led to revelations of egregious prosecutorial misconduct.

The act includes extending the statute of limitations on bar discipline against prosecutors whose misconduct leads to wrongful convictions.

But shouldn’t Texas law protect prosecutors who try to stop misconduct as well?

“Wrongful convictions jeopardize nothing less than the lives, liberty, and public safety of Texas’ citizens,” Innocence Project attorneys wrote in the brief, which urges the Texas Supreme Court to take Hillman’s case.

“At the very least, this Court should make clear that prosecutors who are discharged for refusing to illegally suppress exculpatory evidence from an accused defendant, in violation of the laws and public policy of this State, are entitled to some meaningful measure of judicial protection and relief,” the brief argues.

Without such protections, the Innocence Project argues, unscrupulous district attorneys would be free to retaliate against conscientious prosecutors — and that in time could lead to a “culture of disregard” for the law.

“We hope and expect that these situations are going to be rare, but that doesn’t mean the law shouldn’t be as strict as possible to prevent them,” said Nina Morrison, senior staff attorney with the Innocence Project.

“It’s ironic that this case is coming up now when Texas has done such an extraordinary job to change laws to prevent what happened to Michael Morton and Anthony Graves from happening to someone else,” Morrison said, citing another infamous case where prosecutorial misconduct sent an innocent man to prison — in Graves’ case, to death row. “It would be a shame if that progress went backward.”

In the lawsuit, Hillman claims he was investigating the case of a man charged with intoxication assault and leaving the scene of an accident when he located an eyewitness not mentioned in offense reports who said the defendant was not intoxicated.

Under the Morton Act, that witness account is considered exculpatory evidence and must be turned over to the defense.

But Hillman alleges that his then-supervisor ordered him not to disclose it. Hillman says he contacted both the Texas Center for Legal Ethics and the State Bar of Texas’ ethics hotline for second opinions. Both told him in no uncertain terms to turn it over.

He did. A week later, on the day the trial was set to begin, Hillman was fired, allegedly for refusing to “follow orders.”

Lawyers for the plaintiffs — Nueces County and former District Attorney Mark Skurka — have not ceded facts in the case but have argued, successfully so far, that Texas law has long protected a government agency’s right to fire an at-will employee for almost any reason — even refusal to violate the law.

The Supreme Court, in a case called Sabine Pilot, carved out a narrow exception in the 1980s for private sector employees fired for refusing to perform an illegal act. Plaintiffs’ attorneys argue the ruling didn’t intend it to apply to government workers.

Hillman argues, and the Innocence Project agrees, that the Supreme Court should extend those protections to government employees — especially prosecutors, who shouldn’t be forced to choose between their jobs and their duty to do justice.

This just makes sense. The Supreme Court extended protections once, without permission from the Legislature, and it could do it again — this time for a special group of government employees whose integrity and honesty are profoundly in the public interest to protect.

The whole point of granting the government sovereign immunity against costly lawsuits is to protect the public. In that case, it’s the public’s purse strings.

You’d think we’d be at least as serious about protecting the public’s life and liberty — and by extension, the prosecutors who hold it in their hands.

“We hope and expect that these situations are going to be rare, but that doesn’t mean the law shouldn’t be as strict as possible to prevent them.” Nina Morrison, senior staff attorney with the Innocence Project