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The Problem of Withholding Evidence

Total Criminal Defense has reported in the past on the problem of wrongful convictions in the American criminal justice system. Around the country, groups like the Innocence Project work to exonerate those who have been found guilty of crimes they didn’t commit, whether because of a mistaken identification, the lack of definitive DNA evidence, or some other reason.

And, while the ability to collect and analyze DNA from crime scenes has only emerged fairly recently, some of the “other reasons” Americans are wrongfully convicted have been around for too long.

Craig Watkins, Dallas County’s Attorney General, works for the county and state with the highest number of DNA exonerations in the nation, according to the Associated Press – 31 in Texas since 2001, 17 of which were in Dallas County. In 45 wrongful conviction cases, Texas reportedly had to pay money to the exonerated – clearly not an efficient use of state funds.

But the convictions themselves are not the only reason Watkins has called for reform. Apparently, in at least 22 of the convictions overturned in Texas, prosecutors had access to exculpatory evidence (which would have proved the innocence of the defendant), but didn’t share that evidence with the court!

In a recent interview with Reason Magazine, Watkins spoke about his public advocacy for criminal penalties for prosecutors who withhold exculpatory evidence at trial. Sources indicate that currently, there is no law in Texas that calls for criminal penalties for withholding such evidence.

Watkins, it seems, wants to see that changed, and is currently considering what penalties would be appropriate for prosecutors found guilty. The Innocence Project Texas, a nonprofit legal organization that worked to free many of the state’s wrongfully convicted, reportedly plans to lobby for such law changes and push to have legislation outlining criminal penalties introduced early next year.

Watkins and other supporters of such legislation are allegedly debating what punishments would be appropriate for withholding evidence, and have mentioned both jail time and disbarment.

But Watkins and his supporters likely face an uphill battle, according to sources. Currently, most prosecutors rarely receive even professional sanctions for withholding evidence, as Reason points out. And consider the case of Mike Nifong, the infamous prosecutor who accused Duke lacrosse players of rape despite having evidence to the contrary: even in such an egregious example, Nifong only lost his legal license and spent one day in jail.

The players – like all who are wrongfully convicted – must deal with the damage to their reputations (and, in many cases, long prison sentences) well into the future.

Despite the challenges Watkins may face, he reportedly has plans to punish those prosecutors who break the law by withholding evidence: he plans to fire any prosecutor he learns did so. Sources indicate that two such attorneys have already resigned.

As criminal defense lawyers know, the concept of “innocent until proven guilty” is a cornerstone of the American criminal justice system. It seems Craig Watkins is well justified in upholding that principle as a troubling number of prosecutors choose to ignore it.


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