The Dallas County district attorney who has built a national reputation on freeing the wrongfully convicted says prosecutors who intentionally withhold evidence should themselves face harsh sanctions possibly even jail time.
"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."
Wrongful convictions, nearly half of them involving prosecutorial misconduct, have cost Texas taxpayers $8.6 million in compensation since 2001, according to state comptroller records obtained by The Dallas Morning News. Dallas County accounts for about one-third of that.
Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.
Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.
"Most prosecutors would say, 'No, no, no,' " said Bennett Gershman, a Pace University law professor who studies prosecutorial misconduct.
It is rare for a prosecutor to advocate strict penalties for misconduct even when it's intentional, said Mr. Gershman, a former New York prosecutor. "I couldn't give you five cases in the last 40 years of criminal charges against prosecutors," he said.
State Sen. Rodney Ellis, chief author of the Texas law that created the compensation system for wrongfully convicted inmates, said he, too, would support criminalizing the intentional withholding of evidence by prosecutors. No criminal charge exists in Texas for a prosecutor who intentionally commits a "Brady violation."
That term refers to the 1963 U.S. Supreme Court ruling in Brady vs. Maryland, which held that prosecutors violate defendants' constitutional rights if they intentionally or accidentally withhold evidence favorable to the defense.
"What better way to get to the truth?" said Mr. Ellis, a Houston Democrat who will chair a summit on wrongful convictions Thursday in Austin. "Why wouldn't we have a criminal statute to keep prosecutors from lying when they know the truth?"
Of the 45 wrongful-conviction cases for which the state has paid compensation, at least 22 of them involved prosecutors withholding evidence from the defense: 19 in the infamous Tulia drug convictions and three of Dallas County's DNA exonerations. The remainder of the payouts involved exculpatory DNA evidence or other flaws.
"I think there is a growing realization that we are clearly at a tipping point in Texas," Mr. Ellis said. "And people of conscience have got to be willing to look at it and see what we can do to make the system work better."
State law allows wrongfully convicted inmates to receive $50,000 for each year of incarceration, up from $25,000 per year of incarceration during the first six years of the compensation program.
Mr. Ellis said the total amount paid so far confirms his suspicion that wrongful convictions are far more common in Texas than people realize. Taxpayers should expect to pay "considerably" more as the number of exonerations rises.
Texas already accounts for 14 percent of the estimated 216 DNA-based exonerations around the nation. Dallas County, with 17 exonerations from genetic testing, tops every other local jurisdiction in the U.S. since 2001.
In the most recent exoneration last week, prosecutors originally pursued a murder case against James Lee Woodard but did not tell the defense that three men were with the victim just before she was raped and killed in 1980. Two of the men were later convicted of sexual assault in separate cases.
Mr. Woodard spent 27 years and four months in prison longer than anyone in the country exonerated by DNA. In comments late last week, he said prosecutors who violate the law should at least be fined.
"Money is the only thing that matters," he said.
Fellow exoneree James Curtis Giles said he favors prosecuting attorneys who break the rules. Mr. Giles was wrongly convicted in a 1982 gang rape after the victim incorrectly picked him from a photo lineup and prosecutors withheld the confession of a co-defendant who indicated another man with a similar name, James Earl "Quack" Giles, was one of the rapists.
"A crime is a crime," said Mr. Giles, who attends each new exoneration to support the newly freed. "We've got to set an example prison time or barred from practicing law."
But such violations are rarely prosecuted even in extreme circumstances.
One notable exception was the highly publicized case involving three members of the Duke University lacrosse team who were charged with rape. Former prosecutor Mike Nifong was disbarred and spent one day in jail for criminal contempt because he withheld DNA evidence that ultimately cleared the accused.
John Bradley, the district attorney for Williamson County near Austin, said taking criminal steps against prosecutors, even when they intentionally withhold evidence, is a "ridiculous step" and an "overreaction."
But he said he supports changing state bar rules to allow grievances to be filed when they are discovered rather than within four years of the alleged misconduct, as currently required. There is no recourse when Brady violations are discovered decades later.
Toby Shook, now a defense attorney but formerly a prosecutor under three Dallas County district attorneys, said he does not support criminalizing Brady violations either.
However, Mr. Shook said prosecutors who intentionally withhold evidence to win cases against those they know are innocent violate federal civil rights laws and "belong in prison."
The State Bar of Texas oversees the conduct of lawyers. But it does not prosecute crimes and, legal experts say, rarely sanctions prosecutors for misconduct.
Maureen Ray, an attorney in the bar's disciplinary section, recalled one recent example in which the bar did sanction a prosecutor for withholding evidence.
In 2005, the bar gave the former district attorney of Hale and Swisher counties, Terry McEachern, a two-year probated suspension of his law license for hiding evidence at trial in the discredited Tulia drug bust. In that case, 39 of 46 defendants were black, prompting questions about whether the arrests were racially motivated.
The Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees including Mr. Woodard, supports criminalizing Brady violations. Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, said that doing so would reduce the number of violations.
"If he can do 27 years behind bars," she said of Mr. Woodard, "the prosecuting attorney can face time for hiding evidence."
The Innocence Project plans to push for that in the next legislative session, she said, but she speculated that chances of success at "slim to none." State prosecutors are a powerful lobby in Austin.
Without a strong state bar to take action, Mr. Watkins said he would fire any prosecutor who intentionally withheld evidence from the defense. Two prosecutors accused of Brady violations already have resigned because of Mr. Watkins' stance.
And, according to Terri Moore, Mr. Watkins' top assistant, job applicants are asked what they know about Brady vs. Maryland.
If they don't know much as was the case with one applicant last week they are unlikely to get the job.
CASES OF WITHHELD EVIDENCE
Allegations of prosecutorial misconduct, known as "Brady violations," are often made in criminal cases, but few result in relief for the defendant or discipline for the prosecutor. Here are some examples of Texas cases in which evidence was withheld.
RANDALL DALE ADAMS: Mr. Adams, depicted in the documentary The Thin Blue Line, was sent to death row in 1977 after being convicted of murdering a Dallas police officer. In late 1988, a state district judge concluded that a Dallas County prosecutor knowingly suppressed evidence about inconsistent statements by a key eyewitness and her failure to identify Mr. Adams in a lineup. The judge also concluded that the prosecutor allowed the eyewitness to perjure herself by saying that she had picked him in the lineup. The Texas Court of Criminal Appeals granted Mr. Adams a new trial in 1989. Prosecutors chose not to retry him, and he was freed.
DELMA BANKS: Mr. Banks was convicted of killing a 16-year-old co-worker near Texarkana in 1980. The U.S. Supreme Court overturned Mr. Banks' death sentence and sent the case back to lower courts for review in 2004. The opinion noted that prosecutors concealed the fact that a witness was a paid police informant and that another witness had been intensively coached by prosecutors and law enforcement officers. Texas Department of Criminal Justice records show that he is still on death row.
CLAY CHABOT: A state district judge ruled in March that then-Dallas County prosecutor Janice Warder committed Brady violations that could have changed the outcome of Mr. Chabot's 1986 murder trial. The judge recommended that Mr. Chabot get a new trial. The prosecutor should have disclosed inconsistent statements to the defense by Mr. Chabot's brother-in-law, the judge said. DNA tests later showed the brother-in-law raped the victim, but prosecutors believe both men were involved in the murder and plan to retry Mr. Chabot for murder. The brother-in-law is being prosecuted for capital murder.
JAMES CURTIS GILES: A Dallas County jury convicted Mr. Giles in the 1982 gang rape of a pregnant North Dallas woman and sentenced him to 30 years in prison. Prosecutors did not disclose to Mr. Giles' defense attorney that a co-defendant had given police a statement before trial in which he identified two teenage acquaintances, one named James, as his accomplices. The statement was not turned over by prosecutors until the Innocence Project of New York conducted a new investigation. Mr. Giles, who served 10 years in prison, was exonerated last year after the victim said she was no longer certain he was her attacker.
FREDA S. MOWBRAY: A Cameron County jury convicted Ms. Mowbray of murdering her husband in 1988. She claimed he committed suicide. In 1996, the Texas Court of Criminal Appeals ruled that she should get a new trial, noting in its majority opinion that conclusions by a noted blood spatter expert that her husband probably committed suicide were suppressed by the prosecution "until its hand was forced by the trial judge only days before trial." She later was acquitted.
STEVEN CHARLES PHILLIPS: Mr. Phillips was believed to be the man who, in 1982, victimized as many as 61 people in a six-week period in apartment complexes, gyms and spas in Dallas and Kansas City. When he was tried, Dallas County prosecutors did not disclose an arrest warrant for Sidney Alvin Goodyear, whom DNA tests showed this year to be the perpetrator. DNA tests have cleared Mr. Phillips of two convictions of aggravated sexual abuse and burglary of a habitation. Mr. Goodyear died in a Texas prison where he was serving time for another sexual assault.
DAMON JEROME RICHARDSON: Mr. Richardson's capital murder conviction in Lubbock County was set aside in 2002 by the Texas Court of Criminal Appeals. Prosecutors were accused of failing to disclose the existence of a diary kept by a former Lubbock police officer that would have provided powerful impeachment evidence against the state's only eyewitness. The court noted that the witness's credibility was "fatally impeached by her ever-increasing number of self-admitted perjuriousstatements" and that, had the diary been available to defense attorneys, her "credibility would have not only been impeached, but severely undermined."
TULIA DRUG CASES: The State Bar of Texas in 2005 sanctioned Terry McEachern, the former district attorney for Swisher and Hale counties, alleging that he failed to disclose to defense attorneys "negative information" about an undercover officer who was the chief witness against their clients. That information included an arrest, criminal charges, a reputation for being racially prejudiced, and questions about his honesty and trustworthiness. Nearly 40 defendants were found guilty or pleaded guilty to narcotics charges based solely on the undercover officer's testimony. Many of the convictions in the notorious Tulia drug scandal later were reversed. The state bar disciplined Mr. McEachern with a two-year probated suspension of his law license.
JAMES LEE WOODARD: Dallas County prosecutors in Mr. Woodard's 1981 trial did not disclose to the defense that the victim was seen with three men two of whom were later convicted of unrelated sexual assaults the night she was raped and murdered. Mr. Woodard served more than 27 years in prison after six requests for a new trial were denied. He was cleared by a DNA test that excluded him as the rapist and a change in witness and expert testimony. He was released from prison last week.
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