DALLAS COUNTY DISTRICT ATTORNEY WANTS UNETHICAL PROSECUTORS PUNISHED

The Dallas County district attorney who has built a national
reputation on freeing the wrongfully convicted says prosecutors who
intentionally withhold evidence should themselves face harsh
sanctions possibly even jail time.

"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."

Wrongful convictions, nearly half of them involving prosecutorial
misconduct, have cost Texas taxpayers $8.6 million in compensation
since 2001, according to state comptroller records obtained by The
Dallas Morning News. Dallas County accounts for about one-third of that.

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.

"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?"

'Tipping Point'

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.

An 'Overreaction'

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 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.

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CASES OF WITHHELD EVIDENCE

Allegations of prosecutorial misconduct, known as "Brady violations,"
are often made in criminal cases, but few result in relief for the
defendant or discipline for the prosecutor. Here are some examples of
Texas cases in which evidence was withheld.

RANDALL DALE ADAMS: Mr. Adams, depicted in the documentary The Thin
Blue Line, was sent to death row in 1977 after being convicted of
murdering a Dallas police officer. In late 1988, a state district
judge concluded that a Dallas County prosecutor knowingly suppressed
evidence about inconsistent statements by a key eyewitness and her
failure to identify Mr. Adams in a lineup. The judge also concluded
that the prosecutor allowed the eyewitness to perjure herself by
saying that she had picked him in the lineup. The Texas Court of
Criminal Appeals granted Mr. Adams a new trial in 1989. Prosecutors
chose not to retry him, and he was freed.

DELMA BANKS: Mr. Banks was convicted of killing a 16-year-old
co-worker near Texarkana in 1980. The U.S. Supreme Court overturned
Mr. Banks' death sentence and sent the case back to lower courts for
review in 2004. The opinion noted that prosecutors concealed the fact
that a witness was a paid police informant and that another witness
had been intensively coached by prosecutors and law enforcement
officers. Texas Department of Criminal Justice records show that he
is still on death row.

CLAY CHABOT: A state district judge ruled in March that then-Dallas
County prosecutor Janice Warder committed Brady violations that could
have changed the outcome of Mr. Chabot's 1986 murder trial. The judge
recommended that Mr. Chabot get a new trial. The prosecutor should
have disclosed inconsistent statements to the defense by Mr. Chabot's
brother-in-law, the judge said. DNA tests later showed the
brother-in-law raped the victim, but prosecutors believe both men
were involved in the murder and plan to retry Mr. Chabot for murder.
The brother-in-law is being prosecuted for capital murder.

JAMES CURTIS GILES: A Dallas County jury convicted Mr. Giles in the
1982 gang rape of a pregnant North Dallas woman and sentenced him to
30 years in prison. Prosecutors did not disclose to Mr. Giles'
defense attorney that a co-defendant had given police a statement
before trial in which he identified two teenage acquaintances, one
named James, as his accomplices. The statement was not turned over by
prosecutors until the Innocence Project of New York conducted a new
investigation. Mr. Giles, who served 10 years in prison, was
exonerated last year after the victim said she was no longer certain
he was her attacker.

FREDA S. MOWBRAY: A Cameron County jury convicted Ms. Mowbray of
murdering her husband in 1988. She claimed he committed suicide. In
1996, the Texas Court of Criminal Appeals ruled that she should get a
new trial, noting in its majority opinion that conclusions by a noted
blood spatter expert that her husband probably committed suicide were
suppressed by the prosecution "until its hand was forced by the trial
judge only days before trial." She later was acquitted.

STEVEN CHARLES PHILLIPS: Mr. Phillips was believed to be the man who,
in 1982, victimized as many as 61 people in a six-week period in
apartment complexes, gyms and spas in Dallas and Kansas City. When he
was tried, Dallas County prosecutors did not disclose an arrest
warrant for Sidney Alvin Goodyear, whom DNA tests showed this year to
be the perpetrator. DNA tests have cleared Mr. Phillips of two
convictions of aggravated sexual abuse and burglary of a habitation.
Mr. Goodyear died in a Texas prison where he was serving time for
another sexual assault.

DAMON JEROME RICHARDSON: Mr. Richardson's capital murder conviction
in Lubbock County was set aside in 2002 by the Texas Court of
Criminal Appeals. Prosecutors were accused of failing to disclose the
existence of a diary kept by a former Lubbock police officer that
would have provided powerful impeachment evidence against the state's
only eyewitness. The court noted that the witness's credibility was
"fatally impeached by her ever-increasing number of self-admitted
perjuriousstatements" and that, had the diary been available to
defense attorneys, her "credibility would have not only been
impeached, but severely undermined."

TULIA DRUG CASES: The State Bar of Texas in 2005 sanctioned Terry
McEachern, the former district attorney for Swisher and Hale
counties, alleging that he failed to disclose to defense attorneys
"negative information" about an undercover officer who was the chief
witness against their clients. That information included an arrest,
criminal charges, a reputation for being racially prejudiced, and
questions about his honesty and trustworthiness. Nearly 40 defendants
were found guilty or pleaded guilty to narcotics charges based solely
on the undercover officer's testimony. Many of the convictions in the
notorious Tulia drug scandal later were reversed. The state bar
disciplined Mr. McEachern with a two-year probated suspension of his
law license.

JAMES LEE WOODARD: Dallas County prosecutors in Mr. Woodard's 1981
trial did not disclose to the defense that the victim was seen with
three men two of whom were later convicted of unrelated sexual
assaults the night she was raped and murdered. Mr. Woodard served
more than 27 years in prison after six requests for a new trial were
denied. He was cleared by a DNA test that excluded him as the rapist
and a change in witness and expert testimony. He was released from
prison last week.