CNN follows 60 Minutes in chronicling the 17 men freed after possibly intentional prosecutorial misfires from Henry Wade’s office by focusing on the latest of the exonerated – James Woodard, who spent 27 years behind bars for a rape and murder he did not commit.
Woodard spent decades behind bars, making impassioned pleas to Wade to look at other evidence. To add insult to injury, turns out Wade’s prosecutors knew all along that there was another person of interest, but were more interested in collecting wins than meting out justice.
Dallas County DA Craig Watkins office is working with the Innocence Project of Texas to examine hundreds more cases. He also feels the prosecutor who handled Woodard’s case – and those like him – should be jailed.
“When individuals intend to cause a person to be convicted for a crime they did not commit, that’s an embarrassment for our profession,” he told CNN.
Woodard agrees.
“I think he should pay a penalty. I paid 27 years. He took my life away from me. What’s the difference if it’s by a gun, by words or by lies. What’s gone is gone.”
Thanks again Bethany. I didn’t think anyone would follow up on this story.
This story made me think of a recurring topic at our house. In a governmental system built with checks and balances, what checks do we have upon the legal profession in our society? If prosecutors decide to hold back evidence how do we find out? When the costs of defending a suit are so high that just being sued means one has already lost, why do we not make persist with contingency fees or at least make it easier to countersue?
Law helped make our country the wonderful place it is. Letting members of the legal establishment run amok is wrong.
Steve
My friends and I have been talking about it, too. I do think that – especially in the case of the death penalty – it wouldn’t hurt to have a special review panel that automatically looks over a case file before an execution date is set. If DNA should be retested, then retest it.
Dallas County is not the only county in Texas where this has happened – and I don’t think we can continue to put people to death without a substantive case review.
Both law and medicine, unfortunately, still share the same self-preservative Medieval guild organizational structure, and I think this is prolly what has continued to protect legal malfeasance to date, as it has continued to protect medical malfeasance.
The disequivalence is that lawyers can sue doctors for their malfeasance, but as Steve pointed out “Qui custodiet ipsos custodes–who guards the guardians?”
This Innocence Project will remain insufficiently a warm fuzzy and only half the job unless it provokes the establishment of some sort of meta courts-judicial, like courts-martial, to aggressively prosecute in turn prosecutorial malfeasance.
RJ-Doctors are often to blame for their guild-like activities. However, having been through multiple attempts at disciplining or removing docs who were not competent I can tell you with complete assurance that the first thing they do is lawyer up.
The timeline goes like this. We have questions about Dr. X. He has not actually killed anyone yet but we would like to stop him before their is a really bad outcome. A mentor then works with that Dr. ( I have done this). A recommendation is then made for additional training or removal from staff. X then lawyers up. At this point, we have pretty much made sure that there has been no bad outcome yet. (I should note that I work in the operating room primarily.) If X sues us we stand a good chance of losing as we cannot point to a definite bad outcome yet. Do we risk losing hundreds of thousands of dollars? Should we let X have his bad outcome so we can prove our case?
In my practice we have, so far, risked the suits and removed the incompetent docs. I suspect other people do not take the risk.
My rant aside, I think it good that Physicians have some checks upon their practice, including the possibility of legal action. Docs can be crooked and incompetent and greedy. My complaint is that there is no effective restraint on the legal practitioners. Full disclosure; I live in Pennsylvania which consistently ranks 49th or 50th amongst the states in legal standards and ethics.
Steve
Hey, Steve, I wasn’t pointing any fingers at docs here (I have both docs and lawyers in my family), just including them only because they happened to share the legacy guild structure with lawyers.
While that structure obviously isn’t directly implicated in public governmental justice, the traditional guild structure code of silence is what in my opinion immediately facilitates malicious prosecutorial malfeasance and, if it’s never known, it can’t very well be adjudicated.
RJ- NP. TBH, when I have had a beer or two, with good company visiting, I have been known to advocate for a return to guild structure. My theory was that with a real true guild we could just refuse to provide elective care for lawyers we did not especially like. Clearly , there are a number of problems there, but what other recourse is there? Never going to happen but it would be nice to make lawyers go through the same level of fear everyone else does. Vengeance is mine sayeth the Lord, so I cannot really support it. Besides, organizing docs is like trying to herd cats.
Steve
Eh…mebbe I wasn’t clear: I was saying it was the closed market nature of the old Medieval guild structure itself that led/leads to both bad docs and bad legal practitioners, docs not blowing the whistle on sibling docs, lawyers not not blowing the whistle on sibling lawyers, clergy on clergy, and so forth.
Only difference is docs have lawyers on their backs to bite ‘em with a malpractice vengeance; lawyers, judges and prosecutors have no equivalent checks and balances to speak of, hence the problem Bethany posts about.
Guys, this is not lawyers as such that we’re talking about, it’s a specific subclass of lawyers, namely prosecutors. And yes, their discretion is virtually unbridled, especially but not exclusively on the negative side. If a prosecutor doesn’t want to charge somebody, nobody can make him. And, conversely, if a prosecutor DOES want to charge somebody, it is almost impossible to stop him. (I’ve done research on this stuff. Actually wrote a book chapter on the subject, titled “How Do You Stop a Prosecutor From Charging?”) Among the people most incensed by this behavior are OTHER LAWYERS, for pete’s sake, so stop blaming all of us for their shortcomings.
In making their decisions, prosecutors are supposed to consider: the egregiousness of the crime, the need for deterrence of similar conduct, the likelihood that a prosecution will have such a deterrent effect, the probability of conviction, and the rational allocation of resources. Somewhere in there, they are also supposed to consider the likelihood that the prospective defendant is guilty, but it’s kind of subsumed under the probability of conviction. Until recently, we have always assumed the two were identical.
And, as a practical matter, they are also supposed to maintain a decent ratio of “wins” to “losses.” I once handled a 20-defendant civil disobedience sit-in case in which the jury acquitted everybody. The next day the two assistant prosecutors in charge of the case resigned, because their stats had been irreparably messed up.
The whole win-loss thing arises from the fact that prosecutors are elected officials, and the stats give the voters a criterion for who to vote for. In most European countries, the prosecutor is an unelected civil servant. That may have much to recommend it.
Well parsed and written.
The problem remains turning the high dudgeon of the other lawyers incensed by the behavior into a meaningfully active brake on it or antidote to it, and Ima still thinking a guild-rooted code of silence continues to inhibit those incensed speaking out publicly against questionable prosecutions.
The notion of a purely hired prosecutor recruited on the basis of his solidly sustained past performance sounds fine to me.
The other part of this problem situation is of course the less than successfully adversarial defense against questionable prosecution, which generally means low paid or pro bono public defenders with real careers that differ from those on TV.
The ideal paradigm might be a highly lucrative, purely paid position, with a substantially deferred income portion partially forfeit to the public defense budget episodically upon commensurate failure.
Actually, I’d be satisfied with a system in which the Public Defender’s office had the same financial and human resources as the prosecutor. Every now and then somebody (usually a lawyer, BTW) points out that the constitutional guarantee of equal protection of the laws probably requires it. But so far the courts have not bought this argument. That may be related to the fact that so many judges are former prosecutors (I don’t have the actual stats, but it’s a very common career path.)
The interesting thing about these cases in Dallas is that the DA where these potentially hundreds of cases generated – the late Henry Wade – encouraged this culture of “skins on the wall” so to speak. So much so, in fact, that they would often withhold evidence from the defense.
So we’re not even talking about men who were found guilty because technology hadn’t become available yet to exonerate them by DNA – in many cases, we’re talking men who had been decided guilty by prosecution, and then a case tailored to fit – just because they could, and just because they wanted the most notches.
And the other interesting thing? The media in Dallas hasn’t mentioned the most obvious thing. Wade was white, and the majority of these men (just go look at the pictures) are black.
Sorry if I made it sound like a tirade against al lawyers. I spent several hours with my corporate lawyer and accountant figuring out how to handle some issues. Good guy.
My real point, and you voiced it better, is that I see no real checks available on these kinds of lawyers. Giving the defense lawyers more money still does not resolve the problem as I see it. If some prosecutor decides to go after me for political or racial reasons what is my recourse? How does one restore reputation? It costs a fortune to defend a case and you do not get that back even if you win. This guy in Bethany’s story can never be made whole.
Steve