Dallas County district attorney wants unethical prosecutors punished
12:00 AM CDT on Sunday, May 4, 2008
By JENNIFER EMILY and STEVE McGONIGLE / The Dallas Morning News
"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 rapeafter 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 were 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.
Staff writer Diane Jennings contributed to this report.
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