Craig Watkins, a D.A. who understands his ethical priorities.
In Law School, I had the honor of being instructed in the superb Georgetown Law Center Criminal Justice Clinic, by far the single best course of any kind I participated in at any level of my formal education. Our mentor in prosecutor ethics was Seymour Glanzer, the man who, as an Assistant U.S. Attorney, cut the deal with Nixon’s White House Counsel John Dean that cracked open the Watergate scandal.
Sy had one mantra he repeated to the clinic students often, trying the beat it into our heads forever: the prosecutor must be the center of justice and ethics for the criminal system. Defense attorneys have to defend the accused whether they are guilty or not, but prosecutors are charged with achieving justice, not convictions. “If you don’t have sufficient legal and reliable evidence to convict a defendant of a crime, or have any doubts about that client’s guilt, drop the case,” he told us.
His principles do not hold sway among many, perhaps even most prosecutors, to the shame of the criminal justice system. Too many see their duty as convicting as many accused as possible, putting the law-abiding public at ease by closing cases and filling prisons. Over-zealousness, sometimes to the extremes of withholding exculpatory evidence from defense attorneys while placing questionable eye-witnesses and unreliable experts on the stand under oath, is rampant in district attorney offices across the country.
The worst of the worst may have been Dallas. Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, argues that “no other county in the country beats Dallas. It’s a county that beats out most states in the country.”
It’s an indication of a system that needs reform, she says, with “staggering numbers of the innocent put in prison.” That is why the recent steps taken by new Dallas District Attorney Craig Watkins are so important, and so necessary.
His office just announced plans to create an “open file” policy, which would eliminate the distinction between so-called “Brady material,” evidence that prosecutors are required by law to share with defense counsel, and other evidence in the prosecution’s possession. Under the new policy, the defense would get everything in the file, and not risk having a client convicted because key evidence was “inadvertently” not shared, or “lost,” or because the prosecutor decided that it wasn’t important.
Watkins has also reversed his predecessor’s practice of routinely opposing defense motions for DNA testing. The first time such testing was supported by the Dallas DA’s office under Watkins’ regime, it resulted in the exoneration of Andrew Gossett, 46, who was serving a 50-year sentence for a 1999 sexual assault.
Watkins apologized to the newly-freed Gossett face-to-face, and told him that his office would support his application for a pardon and monetary damages.
The American Bar Association’s Model Rule of Professional Conduct 3.8, “Special Responsibilities of the Prosecutor,” says…
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
In commentary on its rule, the ABA states in part…
“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.”
Dallas District Attorney Craig Watkins understands.
The United States will be a more just nation when all prosecutors similarly embrace the values of my old teacher, and those that do not are required to find another line of work.
___________________________
Pointer: Fred
Source: Grits For Breakfast (This is a terrific blog, and I recommend it highly)
Ethics Alarms 
Why are not prosecutors programmed with these principles?
Career advancement relies on both volume and win/loss record and spring-boarding to related careers involve being able to tell the electorate about how many bad guys you put away for very bad things or being able to tell governors about how many bad guys you put away for very bad things. Justice isn’t to their personal benefit, just convictions.
Cops have a similar problem, with them many have quotas to reach, again advancement it based on results which is seen as a sign of competence. More arrests = good at being a cop, note I didn’t say arrests leading to conviction, they can both blame prosecutors for dropping the ball and punish prosecutors for perceived slights with sabotage if they so choose. It is in their personal interest to find reasons to arrest people. It’s also why I think special prosecutors or something similar rather than district attorneys should be used to handle all cops who break state laws, it’s one the few times normal prosecutors are incentivised not to seek an indictment.
Then maybe we should not have people in those positions, only robots and computers.
Robots and computers are incorruptible.
This does beg the question of why there is no more discussion on this.
I mean, it is so obvious. Throughout history, we have always relied on machines to take the place of human labor, ever since the use of primitive levers.
Who wants to supply Michael with a list of movies that argue otherwise?
I don’t think it would help. Any movies set in the land of Here-and-Now (necessarily encompassing the Past) that presuppose computers are programmed, input and operated all by themselves is science fiction. Except for the one starring HAL, although his clinical depression did cause a severe malfunction.
I’ve always wondered why the civilian courts haven’t adopted the military practice of having both the prosecutor and the defense council in the same office under the same command as they do in JAG. It would seem that this would eliminate the US versus THEM mindset
It’s because of loyalty and trust, Bill. The adversarial relationship and the appearance of such assures the accused that the two lawyers aren’t colluding against the defendant, and attorney-client confidentiality is surely at risk if there is not physical distance. That’s why in law firms a lawyer with a client who might be adverse to another lawyer’s client in the same firm has to be screened from substantive contact with the other lawyer.
If its just appearance to appease the client then the client must be pretty stupid. In my experience with JAG, I testified in two attempted murder courts martials, and sat on one courts martial as a member and always found both the prosecution and the defense to be very professional and disciplined.
Clients are pretty stupid pretty often. Military justice is special..I don’t know as much about it as I should.
There is a presumption given the weight of military Commissions combined with the added weight of the Oaths of Office, that barring any obvious corruption, the officers in charge are not corrupted. Whereas in the civilian world, the presumption that so much burden lies on the state and the accused’s innocence until proven guilty, that even a hint of amiability between defense and prosecution is enough to worry about corruption.
The military, for internal issues, is given more leeway and trust. I recall, once as a Lieutenant, seeing a Sergeant engaged in misconduct… Not court martial worthy, but Article 15 worthy, when he argued with the first sergeant that “here’s what really happened” and I informed the 1SG what I observed, I asked, “what further investigation do you need? More witnesses? Evidence?”
His response- “none sir, you outrank him, and have the presumption of integrity, you’re testimony is beyond reproach.”
Weighty stuff to recognize when you don the uniform.
Had I been a private and given the testimony or had the accused outranked me, further investigation would be required. Or if it was court martial worthy, further investigation would have been necessary. If a higher ranking officer gave witness different from mine, his would receive precedence though if substantively different, there would then be a need to check on my testimony.
Of course I don’t recall if that’s how it would work with summary court martial or even general court martial.
Seems very prone to corruption… If our military were chock full of the dishonorable. But it isn’t. And the system has to work that way.
I once had a Captain give me an order , to which I complied, that he was later informed that what he had me do was against regulations so he wrote me up on charges, denying he gave me the order. The only problem was that he didn’t count on me writing his order down in the duty log and that the very night the Sgt Major of the base had come through the barracks and had signed in, on the same page. When presented with the duty log at my office hours, and the testimony of the Sgt Major, he hemmed and hawed and made excuses. He was out of the Corps within 6 months.
Who was the guy who initially informed him that his order was against regs?
I heard a rumor that Sergeants Major may visit battalion commanders without an appointment, but captains may not.
Comment of the Day. It’s about damn time…
Thanks. Though I wouldn’t consider it authoritative. My memory may not be serving me well on that one.
Thank you for blogging about this. Craig Watkins gives me hope.
I have been wrapping my head around this for about a week. Forgive me for being obtuse but I am not sure why he is an ethics hero. The evidence/information/material he is stating that he is making available is something he is required to produce anyway. Why is that admirable? Why is doing what he and his office are legally and ethically required to do praiseworthy? Again, I don’t mean to be obtuse. Is it because he is trying to change a “win at all costs” culture? Defense counsel shouldn’t have to try to figure if the prosecution is hiding evidence. Why, then, is this DA an ethics hero for doing his job?
jvb
Great question.
He’s an ethics hero for fighting the prevailing culture and understanding what his job is. Remember, in
discovery, a prosecutor is only obligated to hand over copies of the arresting officers’ reports and statements made by prosecution witnesses, and examine evidence that the prosecution proposes to introduce at trial. Then there is Brady material, which is evidence that won’t be used at trial because it seems to cut against the prosecution’s theory of guilt, of could be used for that purpose. With Brady material, the question is who has to think it’s potentially exonerating. Let’s say the prosecution has a witness who it thinks is completely unbelievable—say, an eye witness who claims to be psychic and who saw someone else other than the murderer accused do the crime—in his dream. It can theoretically withhold that testimony. If the rule was that the prosecutor HAD to disclose everything, worthless or not, that rule could be abused too: a defense counsel could be buried in evidence to use up his or her time and resaouces, when the prosecution had already vetted the witnesses and potential evidence.
The mission of a prosecutor is not to find someone to convict for a crime. It is to ensure that only the guilty are convicted. Winning is the overwhelming, traditional culture of Watkins’ profession, and he is swimming against the tide.
Prosecutors can’t disclose all of this at the last second, like on the eve of trial, but don’t have to divulge it ASAP either. There are lots of ways to play games with discovery, and if the law allows it, prosecutors will do it.
Thanks for the clarification. With those comments, I agree. He is an ethics hero.
jvb