When Prosecutors Hide Evidence

Dallas County District Attorney Craig Watkins is Texas’ best DA when it comes to seeking out wrongful convictions. Mr. Watkins exoneration work has uncovered a startling trend- many wrongful convictions involve prosecutors who purposefully hid evidence from the defense.

Mr. Watkins proposes criminal and state bar sanctions for prosecutors who hide evidence to convict the innocent. This proposal has generated some wonderful debate on the issue from TDCAA, Grits for Breakfast, Bryan Attorney Steven Gustistis, Simple Justice.

Texas law limits discovery in criminal cases. However, the Constitution requires prosecutors to turn over “Brady Material”. Brady material consists of exculpatory or impeaching information that is material to the guilt or innocence or to the punishment of a defendant.

Despite this requirement some prosecutors have hidden Brady Material to seek convictions, assuring that justice will not be done. Mr. Watkins proposes that prosecutors who intentionally send the innocent to prison be held responsible.

Williamson County District Attorney John Bradley thinks such a measure is “overreacting.” Mr. Bradley has no program to free the innocent is his county.

A seemingly confused prosecutor Stacey Brownee from Longview posted this on the TDCAA message board.

I’ve got no problem with something like this (bar sanctions not criminalization) as long as its not just for prosecutors but for the defense too. If its the truth we are looking for, let’s get to the REAL truth !!

Stacey does not understand the danger in hiding Brady Material has nothing to do with finding the REAL truth, or with defense lawyers. Defense lawyers have no duty to provide evidence for the State. Defense attorneys represent the accused and the rights of all accused.

The purpose of criminal trials in the United States is not to find the “truth”, REAL or otherwise. American criminal justice is an adversarial system where the State has the burden of proof. “Seeking the truth” is for Inquisitorial Systems of criminal justice.

When we incarcerate the innocent we destroy the legitimacy of the criminal justice system. We need criminal/bar sanctions for this conduct now more than ever. The more freedoms, privacy rights, and Constitutional protections we strip away, the more innocent defendants end up in jail. Texas prosecutors have unfettered power to arrest, charge, and try cases. That power should come with the responsibility not to break the law, or hide Brady material.

We need sanctions only for intentional conduct. If we can jail Texans for failing to wear a seat belt, smoking pot, or playing poker then we surely can jail those who put purposefully put innocent men and women behind bars.

UPDATE- I have been following the great debate on this issue in the TDCAA forum. First of all, I have never experienced a situation where Brady material was denied. Like all problems, I’m sure prosecutor hiding Brady material is limited to a small minority. Second, the prosecutors on TDCAA really seem to hate the idea of extending discovery rights in Texas. For example, mutual discovery etc is mentioned. As if defense lawyers should become fact finding agents for the State.

Texas does need to modernize our discovery laws to reflect a new reality; privacy rights, 4th/5th/6th amendment rights are reaching new lows. The only way to avoid wrongful convictions in the future is a robust discovery process that gives defendants access to the information that can prove their innocence.