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We often emphasize the powerful position prosecutors hold in our nation’s bloated criminal justice system. In theory, judges serve as an independent check on that awesome prosecutorial power; they are supposed to enforce a defendant’s rights and apply the rules to ensure that the State’s agents encounter some constraints. A damning and eye-opening law review essay in the current volume of the Houston Law Review obliterates this picture of judicial oversight. Titled “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” the piece by Jordan Steiker, James Marcus, and Thea Posel describes how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.

While it is not unusual for judges to ask parties to submit proposed findings before they make a ruling, it should be unusual for them to simply adopt one party’s document without reading it, without editing it, without considering it. The fact-finding process is meant to be adversarial, even more so in high-stakes capital cases. When courts just adopt the State’s documents verbatim, due process is rendered meaningless; judges have ceded whatever authority they have, handing it over to the State.

This may sound like a harsh characterization, but the essay is both thorough and definitive. The authors and their researchers did a tremendous amount of work—they reviewed relevant pleadings and orders in 199 capital postconviction cases that went through Harris County courts since 1995. Here is a summary of the study’s key findings:

In these cases, Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

They further describe:

Including the examples cited above, at least eight Harris County courts—the 179th, 183rd, 184th, 209th, 228th, 232nd, 263rd, 337th, and 339th Districts—have never rejected a state- authored finding of fact or conclusion of law since [1995], even when those findings and conclusions are plainly contradicted by the record.

If you’re thinking that perhaps this is all a testament to the excellent and meticulous work of the Harris County prosecutors, you are mistaken. Indeed, hard proof elicited at a recent hearing establishes that many of these lawyers did not even understand or adhere to their Brady obligations. Without a basic grasp of their core constitutional duties, it is astounding that the courts blindly embrace their judgment. (It also must be noted that some of these same Harris County death penalty prosecutors made the distasteful choice to start a band called “Death By Injection.”)

What’s more, the authors were able to track the time between the prosecution’s submission of the proposed findings and the judge’s signing of the document in many cases. What they discovered was galling. In some instances, the judge signed the State’s proposals—which purport to resolve hundreds of legal and factual questions—within a day. In others, the judges signed the verbatim proposals the very day they were submitted.

While the essay certainly sheds light on the extent of this problem in Harris County, the problem itself is not new. State postconviction courts around the country have long engaged in similarly dubious fact-finding and decision-making practices. Consider, for example, what Andrew Cohen wrote about how the state courts dealt with Doyle Lee Hamm’s postconviction claims in Alabama:

Imagine how criminal justice would look if every prosecutor got to write every judicial ruling in every capital case. Now consider that it is this ruling — verbatim from the mouth of the Alabama Attorney General, endorsed by a judge who may or may not have read the whole thing over a weekend, without giving the defense attorney a chance to rebut its contents — that every court that has subsequently looked at Hamm’s case has blindly deferred to.

Cohen’s indignation is entirely appropriate. What’s stunning, however, is that the Harris County case study proves that the criminal justice system there actually looks like the dystopian hypothetical universe he asked us to imagine. More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.

Of course, criminal defendants in Harris County should be outraged, judges should be embarrassed, and prosecutors should be worried. Evidence proving that state postconviction review is a sham might persuade federal courts to stop providing the near-total deference they normally give to state court rulings. In the meantime, actors within the state should take responsibility. While one may expect appellate court justices to set the trial judges straight, the essay explains that the Texas Court of Criminal Appeals has done nothing to challenge these practices. (Even in Alabama, the appellate court has sounded the alarm in some cases.) Harris County’s trial courts deserve major public scrutiny and accountability in light of the study’s findings. Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.

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