Should Prosecutors Face Criminal Charges for Withholding Evidence?

Sunday, May 4th, 2008

First, have a look at this video, from tonight’s episode of 60 Minutes:

Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there’s rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.

Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.

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.

The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it’s fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn’t face charges when they violate the law.

Watkins, by the way, is a rock star. Read my interview with him here.

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22 Responses to “Should Prosecutors Face Criminal Charges for Withholding Evidence?”

  1. #1 |  EdinTally | 

    Bravo to Watkins and the Innocence Project

  2. #2 |  MikeS | 

    Watching him get the news that he was going free brought tears to me eyes. The Innocence Project and Watkins are truly doing great work.

  3. #3 |  Kevin Carson | 

    Hell, yeah! The first one I want to see fry is Gracie Jane.

  4. #4 |  Billy Beck | 

    “Watkins, by the way, is a rock star.”

    Please stop that, Radley. I’m fuckin’ beggin’ ya, man. We’re living in a culture about hip-deep in ridiculous metaphorical infatuations, about 130 years into active dissolution of apprehension of reality in the wake of Pragmatism as a matter of technical philosophy, and things like this only kick the flywheel along.

    He is no such bloody thing. He’s something far, far better and infinitely more important.

  5. #5 |  Billy Beck | 

    Ps. to MikeS — me, too.

    I’d give a lot to be able to buy that man a drink.

  6. #6 |  Bronwyn | 

    There was a story on Watkins on NPR this morning and cheered. I’m glad the news is “getting out” but wish they’d nagged on other jurisdictions that are dragging their feet.

  7. #7 |  Nick T | 

    Holding a government official criminally responsible for violating your due process rights is something that I’m pretty sure would be unprecedented.

    I think if we had a system that worked properly and there were serious professional consequences such as immediate, permanent disbarment we’d be less-inclined to think criminal penalties were warranted. I also think that holding prosecutors civilly responsible as part of any financial recovery the exonerated are entitled to would well too.

    I’m not opposed to criminal penalties on principle, but I think this movement needs to start with baby steps so people can’t just dismiss this out of hand.

  8. #8 |  Scott | 

    Radley, I point as many people as I possibly can to these posts… almost to the point of evangelicalism… but I’m consistently struck by how entrenched our collective mentality is where the legal system is concerned. Until we can suffocate and kill the belief that the system is universally fair, impartial and immune to political expediency on the part of LEOs, judges and DAs we’re screwed. We’ll dump billions into the construction of new prisons to accommodate the war on drugs but God forbid we spend a single dime to compensate anyone unlucky enough to fall into the crosshairs of a hardcore, win-at-all-costs DA or a cop with fantasies of being a steely-eyed door kicker or a judge who refuses to hear any more testimony because he’s got a 2 o’clock tee time.

  9. #9 |  Frank | 

    Not just prosecutors, but everyone involved in a wrongful prosecution should be charged and assessed a penalty if found to be culpable. The punishment should begin with the exact punishment the innocent person received. That includes death if the person was executed.

    Let the punishment fit the crime.

  10. #10 |  Lou Perryman | 

    “A man has to stand for something!”
    — James Woodard (2008)

    There is something simply and beautifully poetic in the way that these otherwise uneducated men are able to cut to the quick with their assessment of the costs of this travesty of justice.

    This is just the “tip of the iceberg”, as they say. DA Craig Watkins fears that innocent people have been put to death, but what we also don’t know is how many innocent people in Dallas County were sent to prison in cases where DNA evidence doesn’t bear on their cases. They remain falsely and criminally convicted.

    Wonder no more where the Blues came from.

  11. #11 |  Dave Krueger | 

    #7 Nick T
    I’m not opposed to criminal penalties on principle, but I think this movement needs to start with baby steps so people can’t just dismiss this out of hand.

    Then I suppose tying the worst offenders naked to a post in the town square next to a 5-minute taser rental kiosk would constitute too progressive an move, huh? :)

  12. #12 |  William | 

    The one problem I have with this story is Watkins’ assertion that he doesn’t know how much time offenders should get, but that the worst might face prison time. Bullshit. Intentionally withholding exculpatory evidence should be one of the high crimes in this country. It is withholding the liberty of an individual in order to advance your own career while at the same time ensuring that a party guilty of a (generally serious) crime never faces punishment. Permanent disbarment and personal civil liability should be the tip of the iceberg, the base penalty before we even consider how long (not if) they will spend in prison if convicted. At a bare minimum prosecutors who have done this should serve as much time as someone convicted of kidnapping. Personally, I think they should have to serve a sentence longer by at least five years than the sentence their victim served. Multiple offenses should be a capital crime. This is the kind of behavior that a society simply cannot tolerate.

  13. #13 |  Nick T | 

    “It is withholding the liberty of an individual in order to advance your own career while at the same time ensuring that a party guilty of a (generally serious) crime never faces punishment.”

    To be fair William, sometimes expulpatory evidence is withheld in cases where people ARE guilty. Brady says that anything that tends to show it is less likely the defendant is guilty must be produced, including evidence that diminishes the crediblity of prosecutorial witnesses. Not that this menas it’s ok to not turn such information over, but just to paint a realistic picture…

    Like so many injustices perpetrated against innocent people by our justice system, it often starts with police and prosecutors feeling like they are helping to convict a person they KNOW is guilty. That is why it is so critical to enforce serious punishment against peope who knowingly violate Brady, so they won’t even be tempted to go after their gut feeling of justice at the expense of due process.

  14. #14 |  Kyle | 

    I think it makes sense that prosecutors who withhold exculpatory evidence from defense attorneys. Commenter “William” above has it right that these people should be punished severely as if they had kidnapped someone.

    I think this begs the question: what about defense attorneys who know there exists nail-in-the-coffin evidence against their client, withhold it, and allow a criminal go free?

  15. #15 |  Scott | 

    I think this begs the question: what about defense attorneys who know there exists nail-in-the-coffin evidence against their client, withhold it, and allow a criminal go free?

    There are deliberate protections against defenders doing any such thing, and for good reason. Ideally, our system is built upon the idea that the prosecution must prove guilt rather than the defender proving innocence. To ensure that we have the beautiful concept of client-attorney privilege. Any defender who willfully violates that faces disbarment. Which begs the real question: if there are mechanisms in place that allow civil and criminal punitive judgements against defenders for unethical behavior, why aren’t there similar mechanisms in place in regards to prosecutors?

  16. #16 |  Anonm | 

    I keep hearing people braying this is supposed to be a “Christian” nation… Check out Deut 19:16… The penalty for “False Witness”, meaning lying in court to do injury to someone, is for the false accuser to face the penalties attempted on the accused. Fines, jail, eye for an eye, etc…

    That would be a fair, minimum penalty. I’d argue for worse, since the Prosecutor already has far more going for him than the defense. The amount of work in such a crime is proof of premeditation. The top of the top lawyers are prosecutors. The “Dregs” of the legal profession earn barely above minimum wage as defense lawyers. These are people who can’t make a living getting Hispanics to throw themselves in front of cars. The former’s “Budget” for counter testimony, forensics, etc. is out of their salary. The latter can pull millions as long as they keep getting convictions.

    For a famous note, the prosecutors in the “McMartin Preschool case” were fired, not for false prosecution but for “Spending $8 million on a trial without a single conviction.”

  17. #17 |  Nick T | 

    Kyle, it does not beg that question at all. The prosecutors job is to seek justice and he/she is a government agent. The defense attorney is an advocate. What about if a client tells his defense attorney that he did it? Does that not mean that the attorney can’t still challenge the state to meet its burden of proof? People who expect defense attorneys to act like judges (or worse) police officers or prosecutors should follow that one through to its logical conclusion and realize how stupid that idea is.

    Scott, I’m not sure what rules you are talking about, but there are many cases where a defense attorney is required to protect such information. If an attorney finds a witness through her investigations whose testimony would hurt her client, she is under no obligation to reveal the identity of that witness to prosecutors and that information is likely to be protected by the work-product privilege. Similar if a defense attorney is told where incriminating evidence is by her client. Now, if the attorney comes into possession of physical evidence such as a murder weapon, the ethical rules are not always clear but she usually has to at least inform a judge.

  18. #18 |  Kyle | 

    Nick T, I’m not necessarily advocating this but only trying to think it through. I understand that the defense attorney acts as an advocate, but I don’t see how that fundamentally changes the ethical situation. If prosecutors should be punished for lying through omission about exonerating evidence, it seems like the logical corollary would be punishing a defense attorney who knows his client is guilty from also lying through omission.

    In both situations, justice is not met due to conscious manipulation. The best argument against this would seem to be the idea that someone is supposed to be innocent until proven guilty, but even that doesn’t seem to satisfactorily resolve the problem.

  19. #19 |  Nick T | 

    Well Kyle,

    The logic fails because the roles are different. A lawyer, in every single context, EXCEPT for a prosecutor, is basically an extension of the client. Not a person to come in an see that justice be done, but to fight tooth and nail for the client. This is the essence of an adversarial system. If you want to debate the merits of an adversarial system, there are good arguments there, but you cant just apply this to criminal defense attorneys. SHould corporate attorneys only negotiate “fair” contracts for their clients rather than border-line predatory practices?

    What you are proposing is – followed to its logical end – a self-defeating system: Why would anyone be honest with their defense attorney about negative information? WHy would an attorney bother to investigate the facts of their case if whenever they discovered contrary evidence they had to hand it over to the enemy? So what you get is people lying to their lawyers and lawyers doing nothing to help their clients. So people get crappy representation AND no defense attorneys end up furthering the cause of “justice” because they don’t know squat.

  20. #20 |  Frank | 

    “Then I suppose tying the worst offenders naked to a post in the town square next to a 5-minute taser rental kiosk would constitute too progressive an move, huh?”

    I dunno, can we tie up some BATFE agents? I would suggest tasing some body part other than their balls, seeing as how they have none.

  21. #21 |  Jennifer | 

    How about this… When an investigator and prosecutor withhold evidence that could possibly lead to a charge of an individual who has been accused of a “car theft ring” but do not bring the evidence to the attention of the surrounding jurisdictions or that jurisdiction does not bring about a charge until the previous charge has either been dismissed or the defendant has been given a release date, only to keep him in jail for an unspecified time, with no bond. And, the investigator even had the balls to tell me that was what he would do…”every time you think it’s over, it’s just beginning because as soon as he’s done with one charge were just going to bring another one against him, Virgina doesn’t have a statute of limitations on felonies so, your boyfriend is going to be in jail for a long time, you might as well move on!”

  22. #22 |  Joe | 

    Charge the scumbag corrupt prosecutors and run “them” through the legal system. And be offered a 10 year sentence plea deal. And then see them have to take it, because they cannot afford the outrageous costs of defending oneself.