In the Dallas News today ("Dallas county district attorney wants unethical prosecutors punished," May 4), he's quoted declaring:
Williamson County DA John Bradley was quoted calling the idea "ridiculous" and an "overreaction," but even he didn't argue against:
"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?"
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.As it turns out, the News reported, the only recent prosecutor cited for misconduct at the state bar was Terry McEachern, the district attorney from the infamous Tulia drug stings:
Personally I'd rather just see the Lege mandate an "open file" policy. But prosecutors at the Lege have opposed an open file policy by trying to tack on "reciprocal discovery" provisions that many in the criminal defense bar believe violate the 5th Amendment right to avoid self incrimination. Watkins' proposal could break that logjam by simply providing penalties when prosecutors don't follow the rules.
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 point of an open file policy, anyway, is to avoid "Brady" violations, so if prosecutors want to continue to pick and choose what information to give defendants, this idea would make sure there were consequences when they failed to live up to that obligation.
RELATED: Watkins will participate on in a forum in Austin on Thursday in the Texas Senate chambers discussing how to prevent convictions of innocent people.
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