Tuesday, February 27, 2007

DAs dislike criticisms of DNA destruction practices

As my paternal great-grandfather used to say, "Only a hit dog hollers."

In response to this recent Grits post about prosecutors seeking to destroy DNA evidence to avoid future innnocence claims, we find several lengthy responses this morning on the Texas District and County Attorney Association website from discontented prosecutors suggesting my criticisms weren't offered in good faith. I responded to a couple of them via email, but since I can't post to their site I thought I'd record my responses directly here.

The first missive was from a Dallas prosecutor, Bryan Rutherford. He begins by launching an attack on Judge Ron Chapman, who commented in response to the original Grits post. Rutherford speculates someone was impersonating the judge and speciously implied Chapman had violated ethical codes. Rutherford then proceeds to claim my blog post is a "good example of a non-attorney misunderstanding general principles of how the law works." Read his full critique here. Here's how I responded:
Mr. Rutherford,

I can't post on the DA's site, but this non-attorney understood everything you said before you said it and doesn't find any of it very compelling. Or even particularly interesting.

First, you pulled Judge Chapman's quote out of context. He said IF Bradley's quote is accurate, then etc. He caveated his comment in a way that thwarts your critique. And I'm pretty sure it was Judge Chapman. Like many judges he's a regular reader. So get thee to Austin and file away.

As for your arrogant argument that non attorneys can't understand plea agreements, I know full well that "The criminal law explicitly authorizes a defendant to make such a a deal, and gives the State permission to destroy biological evidence." I think that's a bad law. Only someone who thinks no one was ever coerced through a plea bargain to admit to something they didn't do (or given a false confession during interrogation, e.g.) would say that constitutes justice when in Dallas where you're from more than a dozen CLOSED cases were proven wrong through DNA (and many others in the Sheetrock scandal and other FUBAR cases).

You live in a bubble, sir, where the world that lawyers have constructed and justified among themselves, you apparently believe, somehow corresponds to real-world morals and ethics that the rest of the public can recognize. Bottom line: it doesn't - not in this case. That a prosecutor from Dallas is arguing DNA should be destroyed in closed cases, given what we're seeing happen there, is an example of how "legal reasoning' has led your profession down a path of frankly often well-deserved disrepute.

Scott Henson
No word back yet from Mr. Rutherford.

Williamson County DA John Bradley added his own response on the DA website. He goes on at length pretending that his critics don't understand that it's legal to enter into an agreement to destroy DNA evidence in this fashion.

Who cares? No one ever argued otherwise. As I granted in the original post about which they're complaining: "The law allows plea agreements to waive future DNA testing," and I freely admit that it also allows the destruction of DNA evidence. That's not the point. Before 1863 the law permitted slavery, too. Some laws are bad laws, and this is one of them.

Bottom line: After all the recent DNA exonerations in Dallas, it no longer to seems wise to assume that DNA evidence in closed cases is irrelevant to future claims of actual innocence, especially given the incredible coercive power of high sentences to force reluctant plea agreements.

Bradley goes on to play the martyr, complaining that unruly, "unrestrained and uneducated" bloggers who dare monitor their User Forum are somehow infringing on prosecutors' First Amendment rights:
Final note: the value of this website is the ability of prosecutors to exchange thought and ideas. That value is diminished by the unrestrained and uneducated accusations of others who seek to make political points. But, that should not discourage lawyers from continuing to exchange information -- information that surely even outside posters would agree is available by virtue of the application of the First Amendment to all persons, even prosecutors.
This is a red herring. Who in the world is trying to stem prosecutors' free speech? If anything, all I've ever done on Grits is give their speech a wider audience, which hardly seems to impinge on their freedom.

Finally TDCAA executive director Rob Kepple added his own comments to the forum, himself attempting to wrap himself in the free speech banner while again dismissing any critics as uninformed. He wrote:
As an organization that supports public servants, our prosecutors, we have always taken the position that our hosted legal discussions don't need to be secret affairs. We still believe that, notwithstanding the disappointing reactions of others. Kinda embarassing for them, actually, that we are the ones carrying the First Amendment banner here....

My message to the posters on Grits: Rather than try to take every word we say and twist it to fit some pre-conceived notions you are straining to validate, why not be a little more open-minded? Why not try to follow and understand the legal issues discussed?
How is criticizing prosecutors' public statements restricting their First Amendment rights? I've yet to see one of these smart prosecutors make a single, credible argument to that effect except just to say so. Bottom line: It doesn't. As for following and understanding the legal issues, I understand completely: I just think this DA discussion is evidence that Texas' laws allow DAs too much leeway to secure potentially wrongful convictions through plea bargains. Destroying the evidence in these cases prohibits the kind of checks and balances provided by groups like the state's various Innocence Projects.

Kepple also spoke up to try to defend Mr. Bradley's comments, though apparently without reading the Williamson DA's actual words. He wrote:
I must have missed it, but I didn't see anything in the post about how a prosecutor wanted to destroy evidence because the person might be innocent...nor anyone talking about such an idea.
But that's silly. Bradley's comments said precisely that. I wrote to Kepple in response:
You definitely did miss it. John Bradley said destroying evidence was important because "innocence trumps everything." That means he wants to destroy evidence to avoid future innocence claims. I don't see any other way to interpret it.
Kepple replied thusly:
Scott: I interpret that exactly the opposite -- of course if there are issues of innocence, and they trump everything. Sometimes I get the feeling I could just post the name "John Bradley" on Grits and get people stirred up! I have this image of that guy in Young Frankenstein...every time he says "Frau Blucher" a horse nays!
At this point I'm pretty used to such dismissive, ridiculing rhetorical tactics by prosecutors against their critics - everything's too complicated for us poor laymen, is the common refrain, shortly before some humorous or insulting reference like the Young Frankenstein quip. I've been around that block many times, usually fruitlessly. But against my better instincts, I decided not to let it go there. Here's how I responded:
Rob, please look at JB's exact language and its context. He's saying that future arguments of innocence may trump waiver agreements because "innocence trumps everything", just like Craig Watkins is now allowing re-testing of DNA even where such agreements existed. Because of that, he says, it's better to destroy the evidence.

Honestly, how else can that be interpreted given what action (DNA destruction) he's advocating?

I'll certainly grant you I've got at least two or three regular commenters who I've seen consistently invoke Bradley as some demon incarnate. For my part, I think you'll find I've mostly restrained my criticisms to his actions and statements in the public arena or on issues with public policy implications beyond Williamson County - it's not like Grits is a John Bradley Watch. The blog Eye on Williamson County writes much more obsessively about him than I do. That said, I hope you'd agree JB holds himself out as an expert (on just about everything, humorously), testifies at the Lege portraying his opinions as those of "prosecutors," and holds himself out as a mentor and eminence gris among the prosecutorial set. When you do that and take controversial stands, especially when you do so with such disdain for those who disagree, frankly one invites criticism.

Finally, just to have said it, nobody in the world is trying to squelch prosecutors' First Amendment rights to discuss these things on your User Forum. I hope you continue to discuss these topics publicly. All I did was criticize what was said, just like I have countless news article, blogs, and others expressing opinions about Texas criminal justice public policy issues in public forums and settings.

Anyway, take another look at JB's comments and tell me if, in all honesty and good faith, he isn't proposing destruction of evidence BECAUSE innocence trumps everything. I just don't see your reading in the context of the the overall Q&A string and his followup comment.
None of this is abstract - DNA evidence is causing the release of wrongfully convicted inmates at an alarming pace, and we don't need to go around destroying evidence, especially in the most serious cases, until the science and the law around these situations is much more settled.

Here's the bottom line difference, I think, between my point of view and the prosecutors: They believe, "it's legal therefore it's right for me to do it." To me, just because it's legal doesn't make it right. In the case of destroying potentially exonerating evidence just to prevent future hassle or embarrassment, even if it's legal, I think it's decidedly wrong.



Anonymous said...

Props to you Scott, from another uneducated and unrestrained writer.

Gritsforbreakfast said...

You know, Dave, I really like that line, too - quite a lot. After seeing your comment, I've added Bradley's "uneducated and unrestrained" comment to the quotes in the permanent sidebar. :)

Mike Howard said...

Good job Scott. I saw those comments on the forum today and thought about addressing them myself but you've handled it perfectly. But then again, I'm a high 'n mighty lawyer who understands all this complicated legal jargon better than you peons...

And that guy ripped off my Frau Blucher reference from my post on all this business without any reference. The nerve!

Anonymous said...

I think the "legal jargon" is exactly the point here. Should justice only be accessable to the "educated and informed"? I think not. So lets keep things simple shall we?

Why do lawyers want DNA evidence destroyed after a plea bargain has been accepted?

I wonder if any could answer in less than 300 words.

Anonymous said...

A prosecutor (not all lawyers are prosecutors, but you must be a lawyer to be a prosecutor) wants DNA evidence destroyed after a plea bargain so that when the poor wretch decides that he got a horrible "deal", there will be no biological evidence remaining to test to prove that he or she, in fact, could not have commited the crime.

I like Scott's slavery analogy...just because it is legal doesn't make it right. The idea of destroying evidence as part of a plea deal is horrifying. Just goes to show how insecure prosecutors are about their cases and abilities.

Anonymous said...

Former ADA here.
Prosecutor's want DNA destroyed because
1- They believe in the infallibiltiy of conviction and guilty pleas and the system in general.
They believe "if they law allows it" then that ends the discussion. That's one of the reasons some DA's deny access to evidence (police reports etc), because they can. Even though their job isn't to "convict but to see that justice is done".
2- They desire judicial economy. Our criminal justice system is set up to be slow. Prosecutors have cases to move. For insight on this see the TDCAA discussion of HB1178.

Finally, I met many great people when I was an ADA. Prosecutors with different viewpoints that John Bradley rarely speak out, especially on the message board. It's a culture that doesn't reward dissent.

Anonymous said...

Why do lawyers want DNA evidence destroyed after a plea bargain has been accepted?

I wonder if any could answer in less than 300 words.

I'm not a lawyer, but I can do it in less than 10: Because it costs money to keep it around. I haven't waded into the TDCAA forum to see if anyone has raised this point, but it's an obvious one, and one that at least has some justification.

Now, I don't know if the marginal cost for maintaining DNA evidence (as opposed to any other kind - what's the general policy on, say, fingerprints and fibers?) is truly burdensome, but it is a point that needs to be addressed, since money is always an object.

Hope that helps.

Anonymous said...

As for preserving crucial, DNA containing samples such as semen or saliva we're talking about keeping something about the size of a shoebox frozen indefinately? If the prisoner wants this crucial evidence preserved, why not bill the prisoner or his family? Better, why not explain the repercussions of destroying this crucial evidence in plain language to the prisoner AND MAKE HIM OR HER SIGN A WAIVER PROVING THAT THEY REALLY UNDERSTAND WHAT THEY ARE DOING, i.e., flushing hopes of future exoneration down the potty.

Gritsforbreakfast said...

If it weren't the case that 30% of TX prisoners are past clients of the mental health system, I might agree it's enough to "explain the repercussions of destroying this crucial evidence." But neither defendants nor reality are always as rational as it seems like they should be when the issue is discussed in a pristine legislative committee room. best,

Anonymous said...

To the commenter who stated that it's a money issue ... it seems to me that the cost of freeing a handful of wrongfully incarcerated prisoners (who cost the state a ridiculous sum of money yearly) would more than offset storage costs for 10-year-old DNA samples.

Maybe I'm crazy, though.

The Local Crank said...

Why in the name of St. Clarence Darrow would ANY defense lawyer EVER attach his name to an agreement to destroy potentially exculpatory evidence? I do court appointments too (and down here they don't pay a helluva lot) but you couldn't get me to sign an agreement like that at gunpoint! In addition to grits' point that it is supporting an immoral law, signing an agreement like that is, at best, ineffective assistance and at worst, malpractice. No DA has the power to make me put my bar card in his hands.

Lisa said...

How amusing/sad that GOVERNMENT attorneys do not understand the First Amendment, i.e., that it is not possible for a Private Grits for Breakfast Blog Writer to commit a First Amendment violation with respect to Blogging D.A.s.

I must laugh long and hard at the poster who says D.A.s just want the cases to move along quickly. The Harris County D.A.'s Office is still dragging their feet on the appeal of Erica Sheppard from her death penalty conviction of more than 10 years ago. A team of lawyers timely filed her appeal about 9 years ago, and to my knowledge, the State STILL hasn't responded to that filing. It isn't the defendants who are slowing down the process.

Anonymous said...

Dallas County can afford the refrigerators needed to store some test tubes until the offenders' sentences are completed.

To the mind of this attorney, the practice may be legal, but it is totally corrupt and unethical. DAs who include such clauses in their plea bargains are, in my opinion, less concerned with justice than with their conviction rate.

Anonymous said...

Sorry, that should have read "Harris County."

Anonymous said...

300 words or less:

Please read this article from the Dallas Morning News very carefully. I think they articulate the point of view rather well:


You'll have to cut and paste it. My hyperlink skills are less than adequate.

Barry Green said...

Thanks for calling out John Bradley. His posts on the TDCAA message board fall into three categories: (1) He thinks he's smarter than every hard working ADA, (2) someone quoted him in a news article, so he'll cut and paste it - without regard to copyright issues, and (3) he will begin the post with,"In my book, 'The Perfect Plea' . . . . ".

He prosecutes in lily white Williamson County - how hard can that be? Put him in Dallas County and jurors would hand him his ass on a weekly basis.

Anonymous said...

The lay-person argument is astonishingly ironic, since the most legally misinformed argument in this whole debate is that it somehow even sniffs the Free Speech clause of the First Amendment.

As a lawyer (though really i should be able to say, "as someone who went to 11th grade civics class") I know that the First Amendment is only implicated when the *government* seeks to limit or control someone's form of expression. It blows my mind and downright pisses me off when people invoke the First Amendment as a defense against mere criticism, and from a non-government entity no less. But Jesus Christ on a 10-speed, to hear a LAWYER do it. They probably got their JD at the mall, and it has their picture on it.

Anonymous said...

Mr. Henson,

You must be right about me living in a bubble, as I naively failed to investigate the source of the GfB topic at issue and I took at face value the blog profile identifying you as a “writer/researcher.” Had I googled this blog and your background, I would have quickly learned that you have been a professional political activist and lobbyist for years, not just any writer. Clearly, I should have anticipated being flamed on your website as being arrogant, unjust, and disreputable for expressing an opinion on the way the law is written.

Further, had I had the time to respond sooner, I would have merely said your complaint is really with the law that allows destruction of evidence after a reasonable time, not with the application of that law. Also, I would have stated that the current use of misleading (or just flat misrepresented) “facts” by writers and journalists is leading “your profession down a path of frankly well-deserved disrepute.” Such misrepresented “facts” are the province of the Bush administration, not writer/researchers! Nevertheless, these responses were unnecessary, given your ability to read minds (“this non-attorney understood everything you said before you said it”). However, I must appeal to the reputable writer in you, and ask that you correct three statements in your blog post of February 27, 2007, which are not supported by fact.

First, you state that you can’t post on TDCAA.com. As the user forums are open to any member of the public to register and post comments, it is disingenuous to say you can’t post. Perhaps it would be more accurate to say you choose not to post, or perhaps some technological issue prevents you from posting, if that is the case.

Second, you misidentified me as currently being a Dallas prosecutor, when I had clearly stated I am now a civil attorney. It is misleading to ascribe my words to an office for which I no longer work, and attempt to legitimize your criticisms of me in that way.

Third, it is a very cheap trick of disreputable writers to send someone an email and, when an immediate response does not arrive, to say “No word back yet.” The implication to your readers is that days have elapsed with my being so shamed I could not bring myself to respond. In fact, I was curious how you sent me an email, so tried it myself from the TDCAA user forum. It turns out that TDCAA was still listing my email address from 2002, which obviously is no longer good. I know this because Dallas County’s email server replied to my email in minutes, saying my old email address does not exist. I guess if you had waited a few minutes before telling your readers that I had not yet responded, you would have known that email address was bad.

Bryan Rutherford

Gritsforbreakfast said...

Mr. Rutherford,

You're allowed your opinions, but it's silly to say you were flamed. You were harder on Judge Chapman (you accused him, wrongly, of judicial misconduct). I didn't do anything here but quote you and respond to your statements.

Meanwhile, if your identifying information at TDCAA was dated, that's hardly my fault, is it? I presume, then, you are a "former" Dallas prosecutor.

As for whether I can post, I am not registerd to do so. The DAs forum is for prosecutors. I am not one, never have been, and I've seen them kick people off before who aren't members of the club, so I don't think what you're saying is right that I'm able to post.

If my email to you came back (honestly, this was a while ago and I never noticed), then the link to this was posted on the DAs site so you certainly had an opportunity to know about it. I'd have published a response by you if I'd received it, or you can always respond here, as you've done - so what's your beef?

Finally, Google me all you want, but your arguments still fall short, which is probably why you're mad. You confuse what's legal with what's right, while to me and I think most people, the Dallas County DAs recent actions in DNA testing cases shows that what's right is a better course.

You seem to think that the fact that it's legal to deny post-conviction testing makes it okay. I believe that kind of thinking is why many people dislike lawyers. Regards,

Gritsforbreakfast said...

BTW Mr. Rutherford, you're right my problem is with the law. That's why in the post I said this:

"I just think this DA discussion is evidence that Texas' laws allow DAs too much leeway to secure potentially wrongful convictions through plea bargains."

No one disputes your legal analysis - it's equating legal reasoning with ethics, I think, that can get prosecutors and other attorneys into trouble.