Is This America's Best Prosecutor?
As a busy criminal defense lawyer, I see examples of prosecutorial misconduct nearly every day. This usually arises out of a "convict at all costs" mentality.
Here is a excellent story from Reason Magazine about a Texas prosecutor -- and former criminal defense lawyer -- who intends to change that.
Is This America's Best Prosecutor?
Meet Dallas County District Attorney Craig Watkins.
Radley Balko April 7, 2008
In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA's office has long been known for its aggressive prosecution tactics.
A former defense attorney, Watkins says the Dallas DA's office has for too long adopted a damaging "convict at all costs" philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.
After taking office, Watkins dismissed nine top-level prosecutors in the office. Nine others left voluntarily. He established a "Conviction Integrity Unit" to ensure proper prosecutorial procedures, and began working with the Texas Innocence Project to find other cases of possible wrongful conviction.
reason Senior Editor Radley Balko recently interviewed Watkins by phone.
reason: What inspired you to not only not put up obstacles to a group like the Texas Innocence Project, but to actually work with them proactively to seek out wrongful convictions in Dallas?
Watkins: We had had several exonerations here in Dallas County before I was elected. So as a result of that, we felt it was something we needed to look into, to see if anyone else we may have prosecuted in this county was wrongfully convicted. We take seriously our charge by the code of criminal procedure to "seek justice." That's one our responsibilities, to make sure innocent folks aren't convicted. And we find they are or have been, we have to do everything we can to rectify the problem.
reason: How should a prosecutor balance his time and resources between prosecuting present-day cases and looking for cases of wrongful conviction?
Watkins: Well, before we got here, there was no one working on innocence cases. So there was no balance, because no one was doing it. We just decided to start a whole new section of the office dedicated solely to innocence. And they're not only looking for bad convictions, they're also looking at what policies and procedures we can put in place to keep them from happening in the future. So we aren't really taking time away from prosecutions. We've just added positions that didn't exist before.
reason: What specific steps did you take after winning office to address this issue?
Watkins: The first thing we did was set up this "Conviction Integrity Unit" in the district attorneys office. We immediately staffed it with two attorneys and two investigators, and told them to look at 400-some-odd cases for which there was DNA available to test. So their responsibility right now is to look through those 400 cases to see if there's reason to suspect a wrongful conviction. If they find cases, we'll then collect the DNA and test it. If it shows the person in prison is innocent, we'll start proceedings for an exoneration.In addition to that, the unit has the responsibility of training the younger lawyers here in the office on the ethical side of a prosecutor's job--things like the importance of properly dealing with exculpatory evidence. And we intend to have this section here in this office forever. This is not a pilot program. It's something I'd like to see spread across the country--where DAs will actively seek out convictions that were obtained unfairly.
reason: What are some common stakes you're seeing repeated in these innocence cases? Do they tend to be willful mistakes, or more due to negligence?
Watkins: It's a combination of things. Negligence, prosecutorial misconduct, faulty witness identification. It's just been a mindset of "conviction at all costs" around here. So we changed that philosophy. We aren't here to rack up convictions. We're here to seek justice. Once we can get over that win at all costs mentality, I think we'll see fewer and fewer of these wrongful convictions.
reason: You talk about the mindset of winning convictions at all costs. The legendary law-and-order Dallas prosecutor Henry Wade, who held the job you now hold for many, many years, embodied that philosophy. He's known to have actually boasted about convicting innocent people--that convincing a jury to put an innocent man in jail proved his prowess as a prosecutor.
Watkins: Oh yeah, it was a badge of honor at the time--to knowingly convict someone that wasn't guilty. It's widely known among defense attorneys and prosecutors from that era. We had to come in clean out all the remnants of that older way of thinking.
reason: It's hard to imagine anyone opposing what you're doing--seeking out and freeing the wrongfully convicted. Do you have critics?
Watkins: We're encountering a lot of criticism right now. I think a lot of it is motivated by political party. The Republicans are losing power in Dallas County, and they're trying to regain it. So they're doing whatever they can, even making the political mistake of attacking the work we're doing on wrongful convictions.reason: What possible arguments could they make against freeing innocent people?Watkins: Initially, their argument was that it's not the role of a prosecutor to look for bad convictions--that that's the role of a defense attorney. But that didn't work very well for them. And it's wrong. Both the criminal code of the state of Texas and the American Bar Association's code clearly state that the job of a prosecutor is to seek justice. That means if a person is guilty, you try to convict him. If he's not, you don't. And if you have reason to believe someone has been wrongly convicted, you have a responsibility to fix that.
Their new argument is, "Is this cost effective?" Is this unit we've created a net benefit for Dallas County? I guess my response to that is that if we find even one more person who has been wrongly convicted, then yes, it is cost effective. So I think their arguments are off base. And they're going to have a hard time convincing the public that what we're doing isn't necessary.
reason: Dallas County has the highest exoneration rate in the country. That's in part because of a fluke. In the 1980s, the county started sending biological evidence to a private lab to be tested. That lab kept all of the evidence pretty well preserved, enabling it to be used in DNA testing today. So Dallas is one of the few places in the country where evidence from that era can still be tested. Do you think the system in Dallas was particularly corrupt or broken to cause all of these wrongful convictions, or would we be seeing the high numbers of exonerations we're seeing in Dallas all over the country if similar efforts had been made to preserve evidence in other places?
Watkins: I think it's mostly because evidence was preserved in Dallas. I don't think there was anything unique about the way Dallas was prosecuting crimes. It's unfortunate that other places didn't preserve evidence, too. We're just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent. They can't do that in other places. But that doesn't mean other places don't have the same problems Dallas had.
reason: Your approach to your job is unique enough that it's earned you some headlines. What do you think about the way we look at the role of a prosecutor today? Are the incentives too geared toward rolling up convictions?
Watkins: Well we've obviously had this political mantra over the last 30 years about "getting tough on crime." And I think too often, buried in that mantra is the implication that there's no room for fair justice. We've stripped away protections for the accused. And as a result, I think many prosecutors went into a case with blinders on--like everyone was guilty. The more convictions you won, the better your chances to get re-elected or to move on to higher office. We're now seeing the fallout from that mentality. Hopefully, the problems we're now encountering will help it to change.
reason: What reforms or checks should DA's offices put in place to guard against wrongful convictions?
Watkins: Well you know police departments file cases with us. We need to guard against being a rubber stamp for every case the police department sends our way. We need to be more skeptical. We also need to train prosecutors to think about their jobs in a different way. We shouldn't be judging young prosecutors by how many convictions they win, or by how many people they put in jail. I'd also like to see a change in the way appellate courts look at these cases. Appellate courts are often too reluctant to second-guess a jury. But if there's evidence there that makes you question whether the jury got it right, I think they need to be more willing to open their minds and take that second look.
reason: But it's established law in most places that appellate courts give considerable deference to the jury's verdict. When they do intervene, it's generally on procedural issues. They tend to pass on actually reviewing the evidence in a case. Seems like a tall order to change that.
Watkins: I think the mere fact that we've had so many exonerations ought to move them to take a closer look at the evidence in criminal cases. You're right that cases are generally appealed on technical issues. But take eyewitness identification. It's been proven time and time again in studies that eyewitness identification is extremely unreliable. Yet police, prosecutors, and juries still tend to put a lot of faith in them. And these same studies show there are some basic steps you can take make eyewitness identifications more reliable, but that also would result in fewer identifications, and fewer prosecutions. But if there are procedures available to increase the validity of a form of evidence, and police and prosecutors aren't using it, then they're deliberately increasing the chances of a wrongful conviction in order to get more convictions. And defendants aren't getting a fair trial. And I think that's something the appellate courts ought to look at.You also have to look at changes in technology. We have new methods and procedures that are better and more reliable than the old way of doing things. But the law tends to be static. If we're consciously not using the methods proven to be more effective and more reliable, we're not giving defendants the fairest possible trial. Appellate courts should be looking at that, too.
reason: Given the novel approach you've taken to the job, what are your prospects for getting reelected?
Watkins: Oh, I don't know. I mean, I don't think about it all that much. I go into my job looking to make sure we administer justice in a fair way. I hope my record will speak for itself. I hope people will see that we take a balanced approach, here. We convict the guilty, and we free the innocent.
I'd hope that that's what people would ask from a district attorney, and from a fair criminal justice system.
Radley Balko is a senior editor for reason.