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.

Regards,
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.

UPDATE