Texas Lawyer

A Justice-at-All-Costs Attitude — Impact Player of the Year Craig Watkins
Mark Donald
Texas Lawyer

Posted on a bulletin board on the 11th floor of the Frank Crowley Courthouse in Dallas is a dated circular announcing an Oct. 25 criminal law CLE seminar co-sponsored by the Texas Criminal Defense Lawyers Association and the Criminal Law Section of the Dallas Bar Association. But one thing seemed odd about the posting. The 11th floor houses the offices of Dallas County District Attorney Craig Watkins. No criminal-defense attorneys work there.

Traditionally, the Dallas County DA's office did not encourage prosecutors to attend seminars geared toward criminal-defense attorneys, says Toby Shook, a former felony bureau chief with the office who Watkins narrowly upset in the November 2006 election.

Dallas DA Craig Watkins
Dallas District Atty.
Craig Watkins

But Watkins has every intention of breaking with tradition. He is the first African-American elected district attorney in Texas history, the first Democrat elected Dallas County DA in 20 years, and the first Dallas County district attorney who, in less than a year, has radically altered the traditional law-and-order role of the prosecution.

"Violent criminals are still being treated like violent criminals," says Stuart Parker, a Dallas solo. "Watkins' regime is just more willing to recognize that a minor felony is a minor felony."

Watkins' focus is as much on preventing crime as it is on prosecuting it. Taking a more holistic approach to his job, he speaks of re-entry programs for ex-inmates and drug treatment programs, as well as garnering the social-service energies of the community to prevent small-time crooks from becoming big-time crooks and to prevent citizens from becoming victims in the first place.

But his impact is far greater than the internal changes he has made in his office. He has become a lightning rod for prosecutors forced to deal with a deluge of DNA-testing requests. In February, Watkins -- responding to Dallas County's record-number of DNA exonerations, the most of any county in the nation -- announced that his office would review more than 354 requests for DNA testing. Watkins has taken the unprecedented step of partnering with the Innocence Project of Texas, a consortium of Texas university innocence programs, to assist him with his review. Also unprecedented is his implementation of a conviction integrity unit within the DA's office, which will police prosecutors and examine any conviction -- past or present, DNA-related or not -- to determine whether it was justly obtained.

And he is just getting started.

Take his new Kumbaya consciousness toward the criminal-defense bar. "When I was a defense attorney, some prosecutors looked upon defense attorneys as though they were defendants," says Watkins. "That attitude has been changing, but we made it office policy to respect your colleagues. Now we have this more congenial attitude in the courthouse. You don't see defense attorneys walking outside a courtroom steaming mad, because some prosecutor has disrespected them."

Inside Watkins' 11th floor corner office, he is equally as congenial, seeming as unpretentious as he is mild-mannered. His tan suit lacks a necktie, though a dozen of them are draped over a hanger behind the front door to his office. "Wearing a tie is the one thing I can't do," he says while chewing on sunflower seeds. "I am just not that formal a person." Watkins says he only wears a tie if he has to -- like when he was interviewed in early December by "60 Minutes" about Dallas County's record number of DNA exonerations, which will be broadcast in early 2008, Watkins says.

But by condemning in a public way what he terms the "conviction-at-all-cost mentality" of prior administrations, Watkins has fomented a morale problem among some veteran prosecutors.

"The message was sent loud and clear, the old way of doing things was evil," says Eric Mountin, who resigned in September as a superchief after spending 15 years in the DA's office. "Everything that [former DAs] Bill Hill, John Vance or Henry Wade stood for has been vilified. Because I was part of past administrations, I was made to feel like an outsider. I went from loving my job to loathing my job."

Watkins counters that morale in his office is high, in part, because he gives his assistant DAs more discretion to dispose of their cases. Admitting he is not a hands-on administrator, he says he has spent a lot of time out of the office, giving speeches to educate the community that the old way of doing things doesn't work. Why else would Dallas County have one of the highest crime rates of any urban area in the nation? "Our success is not going to be based on the number of folks we send to prison or death row," he says. "That's just evidence of the failure of the criminal justice system." He wants to be proactive about crime, he says, getting at its root causes, not just reactive like prior administrations.

In getting out his message, Watkins has raised the ire of some conservatives who insist he is more interested in coddling criminals than protecting victims. Sharon Boyd, a Dallas activist who runs the blog dallasarena.com, refers to Watkins as that "criminal-loving DA." At least one Dallas County commissioner, Mike Cantrell, has questioned whether Watkins, in his zeal to exonerate the innocent, was performing a function better left to a criminal-defense attorney.

And last April, Watkins' appearance on KERA's "Think," a public television interview program, created enough of a stir that some prosecutors around the state e-mailed the broadcast and questioned whether Watkins was disparaging their profession. "I just addressed some issues about DNA testing that were taboo and opened the door to those issues," says Watkins.

Williamson County District Attorney John Bradley recalls the e-mail. "People were wondering whether or not he was going to be supportive of prosecutors in general or their role in DNA cases," Bradley says. "Being a criminal-defense attorney, Watkins is not burdened by the sense of embarrassment that an experienced prosecutor might feel over discovering someone was wrongly convicted."

Only 11 months in office and Watkins has become something of a media darling. For a district attorney from Texas -- the death penalty capital of the world -- to get behind the wholesale review of convictions that might get undone by DNA testing, it's no wonder that Watkins has the national press -- The New York Times, The Washington Post, Los Angeles Times, Newsweek -- beating a path to his necktie-laden door.

Casual Fridays

Watkins' informality is not without its symbolic value. "I wanted to give the impression to folks around here that we need to relax a little bit. We have been too tightly wound for all these years," he says.

That's why Watkins has instituted casual Fridays for his staff. A prosecutor, assuming the judge allows it, can wear jeans, no tie and a jacket to court each Friday. "When I got here, people would look at me out of the corner of their eye -- they didn't know what to expect," he says. "Most of the prosecutors in the office supported the other guy [Shook], and casual Friday was my way of saying, ‘Hey, I'm approachable. The campaign is over, now let's get on with the county's business.' "

But getting on with the county's business proved no small task.

Watkins didn't even wait until his swearing-in ceremony on Jan. 1 before he began molding his office to blend with his prosecutorial philosophy. Days earlier, nine top-level prosecutors were given their walking papers, while another dozen lawyers were either brought in as new hires or promoted and demoted from within. Less than a dozen more would later leave on their own, but the rest of Hill's regime remained, seemingly content to weather the change.

Two of those who were fired -- Rick Jackson, who headed the DA's organized crime division, and Gary Arey, the chief of the juvenile division -- have filed suits against Watkins alleging employment discrimination based on race. In Rick Jackson v. Craig Watkins, et al. filed Nov. 2 in the U.S. District Court for the Northern District in Dallas, Jackson alleges Watkins replaced him with a less-experienced African-American prosecutor. In Gary Arey v. Craig Watkins, et al., filed on Nov. 21, also in the Northern District, Arey alleges he was fired because he is white. A former district attorney investigator also has filed suit.

Watkins told Texas Lawyer in November that Jackson and Arey were not discriminated against; rather they were unqualified to work under his administration because "our policies and procedures are different than under the previous administration," he said.

But Matthew Bobo of Irving's Broome Bobo who represents the plaintiffs countered, "That's absolutely absurd. Nobody ever sat down with any of my clients and said, ‘What is your philosophy?' "

Mountin, one of the superchiefs who remained on board, says Watkins never spoke to him about his prosecutorial philosophy either. "You would think Watkins, who had never prosecuted a case in his life, would want to spend some time talking philosophy with a person who has good trial skills and experience running multiple divisions," says Mountin. "But we had no interaction whatsoever."

None of the remaining prosecutors were asked to join his transition team, which Mountin found somewhat insulting. "They had no one who knew anything about the active operation of the office."

"Because of the way I was perceived by the media during the campaign, I felt there was a prejudice against me and the people here wouldn't have been open to me," counters Watkins. "I didn't mean to do a disservice to Eric Mountin. Maybe he would have had an open mind. Maybe it was me who didn't have one."

The only transition team member of any recent prosecutorial heft was the like-minded Travis County District Attorney Ronnie Earle. "Craig didn't need a whole lot of mentoring," says Earle. "He has a keen sense of justice, and that is part of the job description: seeing that justice is done."

Two of Watkins' top hires, however, did have strong prosecutorial credentials. Terri Moore became his first assistant, his next-in-command who would initiate and implement policy. During her 14 years as a state and federal prosecutor in Tarrant County, she had gained a reputation as a tough trial lawyer. To replace Shook as felony bureau chief, Watkins tagged Kevin Brooks, an ex-Marine and respected criminal-defense attorney with significant death penalty experience.

"So there is this balance effect there -- not just a defense attorney who is the head of things," says Watkins. "Brooks is really hard-line, and Moore is somewhere in the middle."

Remaining prosecutors underwent a philosophic reprogramming of sorts, complete with symbolic gesture. Hanging in the conference room had been a gallery of photographs: Dallas County DAs dating back to the 1900s. In January, says Mountin, the photograph of Henry Wade came down. The long-tenured district attorney, whose name is often preceded in media accounts by the word "legendary," was also known for his staff's seeking 5,000-year sentences, employing a manual that encouraged his prosecutors to strike minorities from jury panels and a zeal for incarcerating bad guys that resulted in some high-profile miscarriages of justice.

But Watkins counters that the removal of Wade's photo was not purposeful. "It was in the way during a press conference. Someone took it down, it sat on the floor and the next thing we knew it was gone," he says. "No one has been able to find it. I have asked about it -- it may be in storage."

Also in January, says Mountin, prosecutors found mounted on the walls of their workrooms a large, black-framed blowup of Article 2.01 of the Texas Code of Criminal Procedure, with only one sentence highlighted: "It shall be the duty of all prosecuting attorneys, including any special prosecutors, not to convict but to see that justice is done."

"Every one of the prosecutors that I spoke with was offended by it," Mountin says. "It was clearly an in-your-face message."

Watkins told Texas Lawyer in April that he had the code provision framed and mounted to serve as a daily reminder to his 234 assistant DAs of their ethical obligations and as a message to criminal-defense attorneys that what he termed the "conviction-at-all-cost" era had ended.

"I was just putting my brand on the office," Watkins now says. "Not being part of the old guard, anything I would have done would have been criticized."

A Perfect Storm

In-your-face or not, Watkins' message of change seems to be finding an audience. Also sworn in on Jan. 1 were 42 Dallas County judges, Democrats who had swept their Republican opponents out of office and were not wedded to the way things were.

Among the new criminal judges were mostly former criminal-defense attorneys. "As a group they are more willing to listen to alternatives to detention as a proper punishment, particularly in nonviolent cases," says Dallas County Chief Public Defender Brad Lollar. "For Watkins, it was a perfect storm; he could sell his policies to a more lenient judiciary."

Two of the remaining Republican judges, Robert Francis of Criminal District Court No. 3 and John Creuzot of Criminal District Court No. 4, had for several years been presiding over drug courts: Creuzot a diversion court for first-time felony drug offenders, Francis a re-entry court for inmates with substance abuse issues who were returning to the community. On the campaign stump, Watkins said he supported these courts, and once in office, he lent additional staff and resources to them.

"A judge can't generate the type of interest and attention to the matter that a DA can," Francis says. "He is not stuck in the courtroom and can make speeches about these issues. He has tons more financing -- a budget of 600 employees. I just have a staff of one."

Within the misdemeanor courts, Moore transplanted a Tarrant County diversion program, which includes a memorandum agreement that can be reached only during a defendant's first court appearance. It allows first-time offenders of certain misdemeanors -- among them shoplifting and marijuana possession -- to perform community service hours, take a course dealing with the issue underlying their crimes, take random drug tests, if necessary, and get their cases dismissed within 60 days, says Craig Jett, of counsel at Dallas' Burleson, Pate & Gibson and president of the Texas Criminal Defense Lawyers Association. "It's good for everyone: for the young kid who gets in trouble because he is acting stupid, for the prosecutor who gets a quick disposition."
Another force in the perfect storm was a growing consensus in the Texas Legislature that Texas could not afford to spend billions more building and warehousing prisoners, particularly since the crime rate was not declining despite the state having one of the largest prison populations in the nation. Although the 80th Legislature approved bond funding for three new prison facilities, the lawmakers for the first time seemed heavily focused on punishment alternatives and poured nearly a quarter of a billion dollars into new funding for community supervision, drug-and-alcohol treatment programs, and halfway houses that facilitate the re-entry of ex-inmates into their home communities.

Watkins says he was too new to the game to have much of a presence in the last session, but he says in 2009 he intends to lobby legislators to press forward with these reforms. "Look, either we continue to have this greenhouse in Huntsville where they grow criminals, or we can look at prisons as institutions of opportunity where you get to fix broken people before they return to the community and re-offend."

Although Watkins says he is just being "smart on crime," it's issues such as these -- rehabilitation rather than punishment, attacking the root causes of crime rather than rooting out criminals -- that give pause to some district attorneys.

"Preventing crime and reducing recidivism through re-entry programs are laudable goals," says DA Bradley. "But I have not seen any program that measured success and would justify spending the manpower and money to do these things. What I know is successful is that consistent prosecution of criminal cases does result in the reduction of crime."

Watkins' holistic philosophy drives the recommendations his prosecutors make when they negotiate plea deals with defense attorneys. "Old-school prosecutors give you a better plea bargain deal if their case is weak," says criminal-defense attorney Parker. "Now the quality of the case is not as important as what is the most appropriate disposition for all the interested parties."

But the issue that has enabled Watkins' message to resonate the loudest is an issue that practically fell into his lap: DNA exonerations.

On Jan. 4, just three days after Watkins took office, he appeared in court to shake the hand of Andrew Gossett, the 11th man in five years to be exonerated in Dallas County through DNA testing. Gossett had been arrested seven years earlier, and Watkins played no role in his conviction or his exoneration, other than to offer an apology for the mistakes of his predecessors. "By apologizing, I was acknowledging that a mistake was made, and I am letting the public know that I am going to do whatever I can to make sure it doesn't happen in the future," Watkins says.

Two weeks later, Watkins apologized again, this time to James Waller, the 12th man in Dallas County released from prison after DNA testing revealed that Waller had spent 11 years behind bars for a crime he didn't commit. Like the other exonerees, Waller had the unwitting assistance of Dallas County in his vindication.
Whereas other counties might destroy biological evidence, Dallas County had a longstanding policy of preserving its biological samples to assist prosecutors if questions ever arose about the guilt of a defendant. Other large metropolitan areas might have an equal number of wrongfully convicted defendants, but without the DNA evidence to prove it, their exoneration would be less likely. Dallas County's policy might account for its record number of exonerations, but Watkins also suggested another reason in a Jan. 22 article in The Dallas Morning News. Past administrations may have been "overzealous," he said, and may not have had the best interests of Dallas County citizens in mind.

Jeff Blackburn, the chief counsel for the Innocence Project of Texas who represented Waller, grew impressed with Watkins' willingness to review requests for DNA testing. "In the normal pattern of DNA motions, prosecutors resist granting a test to the defendant," says Blackburn, an Amarillo solo. "They claim identity is not in issue, because they have a strong eyewitness testimony. They say, ‘Our guy doesn't deserve a second look at his conviction, because a jury has spoken.' Verdict finality has become almost a religion in this state for judges and prosecutors."

Not so with Watkins.

In February, Blackburn met with Watkins and Moore, who invited the Innocence Project of Texas to partner with the DA's office to review more than 350 DNA requests. "That was a bold, amazingly risky step," says Blackburn. "Most DAs would think it was political suicide. But for the first time, we found a DA who expressed the idea that no one had anything to lose by checking out a conviction."

And Watkins didn't stop there.

On April 19, Watkins appeared before the Dallas County Commissioners Court to urge his request to fund a supervisory-level prosecutor to oversee the DNA review process that the Innocence Project of Texas had begun. His argument may have been given greater weight, because two weeks earlier, Judge Francis recommended that the Texas Court of Criminal Appeals exonerate a 13th Dallas County defendant, James Curtis Giles. Watkins says he told the commissioners that his proposed "Conviction Integrity Unit" fell within his province and not the defense bar's. "I told them a defense attorney has no ethical responsibility to seek justice. That is the job of a prosecutor," he says.

In a heated 3-2 vote, the commissioners approved Watkins' request. To head his Conviction Integrity Unit, the first of its kind in the nation, Watkins hired Michael Ware, who directed Texas Wesleyan School of Law's Innocence Project of Texas.

"Our biggest single project is going back and re-examining the 400 cases [354 requests] that were in existence when Watkins took office where testing had been denied," says Ware, whose formal title is special field bureau chief. "But if an attorney brings a case to our attention where it appears that the conviction is highly questionable or suspect for whatever reason, that is something we will look into."
"I am going to make mistakes in the office, and when it happens I will be the first one to tell you," adds Watkins. "Unfortunately we didn't have that attitude before -- before we had a ‘we need to protect this legacy' attitude."

As of November, the Conviction Integrity Unit and the Innocence Project of Texas reviewed 57 of the 350 or so DNA requests. Of these, they have agreed to seven tests, raising private donations to pay for them.

"If you look at these numbers, it is obvious we have approached this in a very responsible way," Blackburn says. "I think that judges and prosecutors throughout the state are learning from Craig's example, that just because you review a handful of convictions, the system is not going to break down, and the courthouse is not going to collapse."

Watkins seems emboldened by his success. "The exonerations gave me a voice and credibility for the message of change."

Because putting an innocent man behind bars was such an indefensible position, says Blackburn, no one could articulate an argument that Watkins' wholesale review of DNA-testing requests was wrong. The political fallout that might be expected didn't materialize.

"If there is anyone who cannot afford to be weak on crime, it is the elected prosecutor of a major metropolitan county," says George Milner III, a partner in Dallas' Milner & Finn and a member of Watkins' transition team. With his DNA policy, "Watkins has managed to do the correct thing and not suffer any of the perceived political backlash one might think he would receive."

Though generally supportive of Watkins and the debate his DNA review opened among some state prosecutors, Bradley finds the idea of a conviction integrity unit troubling. "When you introduce the word ‘integrity,' that sort of language can deliver a mixed message to the troops," he says. "You don't want your people feeling that there is an internal affairs unit constantly looking over their shoulder and questioning their integrity."

Mountin, for one, resented being painted with such a broad brush, and he left the office in September, after securing a new job in Florida as a federal prosecutor.

"I have no problem being called to task for past mistakes, but do it proportionately. Don't claim the entire office is systemically flawed or make it the subject of scorn or national ridicule," says Mountin. "In my 16 years in the office, I have never once prosecuted a person that I had any doubt was guilty. I have no interest in prosecuting an innocent person. Any prosecutor who would do that ought to be in prison."

Watkins says he is not accusing any one prosecutor. "I am just accusing the conviction-at-any-cost mentality of the office. Let's be honest with each other. Just ask any defense attorney who used to be a prosecutor -- they will tell you, that was the tone."
Now voters have given Watkins a chance to strike his own tone, one that delicately balances the traditional role of a prosecutor as community enforcer against the more holistic approach of a prosecutor as community problem-solver. That balance has Watkins one day issuing a press release announcing he will seek the death penalty against an alleged cop killer and the next day rewarding a prosecutor for initiating a Big Brother program that pairs DA staffers with the children of inmates. It has him one day touting his new absconder unit, which will hunt down the most violent probation violators before they can victimize again, and another day selling his ideas about a community court system so neighborhood elders can punish defendants in such a way that victims will be made whole again.

Watkins is doing all this, he says, to lower the crime rate and make people feel safe. Whether his impact can reach that far is a question best answered by the voters.

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