Mind of the Prosecutor

All I can say is, Eek!

Back in 2007, the Grits for Breakfast blog noted that Williamson County, Texas, District Attorney John Bradley gave some curious advice on a discussion board to another prosecutor. The other prosecutor was asking about how to construct a plea agreement in a way that would forfeit any future right to DNA testing. Bradley responded, “Innocence, though, has proven to trump most anything.” How unfortunate! He then added:

A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.

We give prosecutors strong incentives to take away people's freedom and put them in jail.  Guilt or innocence is not part of their incentives, only closing cases and locking people away.  Given these incentives, we should be particularly careful to circumscribe their behavior.  In reality, we give them a virtual free pass.  Prosecutors are almost never held accountable for even the most abusive and illegal behavior.


  1. Zach:

    Personally, I think abuse of power like that (among prosecutors, lawmakers, and law enforcers) should be the only death-eligible crime in this country. Ray Nifong shouldn't be disbarred, he should have jerked at the end of a rope.

  2. Cloudesley Shovell:

    This would certainly be alarming in a contested case, but this is a guilty plea case. I have no knowledge whatsoever of this case or the facts, but the fact that the parties are negotiating a plea agreement means there isn't going to be a trial and that the defendant is going to plead guilty.

    The defendant of course has full opportunity to test all evidence prior to deciding to plead guilty. He also has the absolute right to demand the government prove its case. The fact that he is choosing not to do so is a significant fact for consideration. Before condemning the prosecutor in this case, perhaps it would be better to know more of the underlying facts. This may well be the typical case where the defendant is obviously guilty, and the defendant is getting the best deal he can through a plea agreement.

    I have personally been involved in a rape case where the government destroyed all the evidence as a matter of routine 5 years after the crime; my client was not identified as a suspect until 9 years after the crime, so I know how maddening dealing with these situations can be. Not every such situation, however, involves dirty cops or prosecutors trying to frame someone. Often, as in my case, it's just institutional bureaucratic clumsiness.

    I would be curious to know how many of the Dallas DNA exonerations came from guilty plea cases as opposed to contested cases.

  3. IgotBupkis, President, United Anarchist Society:

    >>> A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.

    Not only should this be illegal to put on the table, it should be outlawed as long as there is any possible relevance to the individual convicted of the crime (i.e., either death+x years or release+x years)

    I would NEVER agree to such unless I was actually guilty of the crime in the very first place, and hoping it would prevent connecting me with some other crime done.

  4. IgotBupkis, President, United Anarchist Society:

    >>> The fact that he is choosing not to do so is a significant fact for consideration.

    Or based on the fact that he does not have the funds needed to properly contest either the testing being done by the opposition directly, and/or the fact that he doesn't have the funds to actually perform tests for himself... or the fact that he's being told "take the deal... NOW... or it'll be withdrawn in favor of a far worse deal if you attempt to defend yourself or delay" -- the latter combined with his own possibly incompetent or indifferent Defense Attorney telling him to take the deal in order to increase their case count (or maybe his DA is being told to convince the defendant to plead the case to free them up for some other case...)

    The number of alternative reasons for such besides "likely guilt" explodes into an exponential expansion when you start considering all the different ways our modern "Justice" system has been corrupted all out of form from what we were taught it did and how it worked.

    The Public Defenders mostly don't care about their defendant's innocence or guilt.

    The DAs only care about convicting and/or securing a verdict that doesn't reflect failure on their part. If one of them KNEW for a fact that their target was guilty, chances are they would only void the case if they believed they could not get a pseudo-win out of it.

    We put the "criminal" in "criminal justice system" these days.

    And no, I'm no bleeding heart liberal.

    I've just seen the "system" chew through people's time and money for no good reason but a crappy local DA wanted to force the victim into a plea deal in a case he KNEW would not stand up in court, and misused the resources of his office towards that end. The victim did not settle, however, and fought it all the way. The judge listened for five minutes, looked at the DA, and admonished him ON THE RECORD. The DA didn't care, it wasn't his money. And he at least got to claim the case was thrown out by a "liberal judge", rather than a total piece of garbage. But the victim? He was out $50k in attorneys fees. How many schnooks are there out there who would've knuckled under? How many other poor schnooks who could not afford to fight, and would have taken a deal?

    I repeat: We put the "criminal" in "criminal justice system" these days.

  5. mahtso:

    "I would NEVER agree to such unless I was actually guilty of the crime in the very first place, and hoping it would prevent connecting me with some other crime done."

    Do you think that the people who do agree are not guilty? What percentage of guilty pleas (under any circumstance) do you suppose are false? (I'm no expert, but I suspect pleading guilty when one is not makes one guilty of perjury.)

    Mr./Ms. Shovell's comment makes sense to me.

  6. EscapedWestOfTheBigMuddy:

    Harris County regularly seeks such agreements.

    Note how no actual person is involved--no one who might have to be morally responsible--instead a political abstraction does the seeking.


  7. steve:

    I don't have any problem with destroying evidence in theory. After all, you can't keep everything forever anyway and plea bargains would seem to be a practical place for such destruction.

    However, in practice, the defendants are often basically strong armed into plea agreements. They are faced with multiple counts adding up to decades in imprisonment if they go to trial. Or, they can take the plea for what they should have been charged with in the first place. Even innocent men take the deal to avoid the greater risk. In practice, I think evidence should be maintained for the duration of the imprisonement, surely that takes only a tiny fraction of the space and money that keeping the defendant locked up does.

    As for those claiming no one pleads guilty when their not. DNA evidence has proven this happens.


  8. mahtso:

    I don’t know anyone who thinks there is never a case when someone pleads guilty but is not. However, your link does not show that DNA has proved that it happened in the case discussed. To the contrary, the article states that “neither man was exonerated by the [DNA] evidence[.]”

    It also states that one person who pleaded guilty and testified against the others has recanted. That leads to the obvious question: was she lying then (and committing perjury) or is she lying now, or both? This sets up a bit of a catch-22: To believe her now requires accepting that she committed perjury then, which pretty well disqualifies her from being trusted.

  9. steve:

    "DNA test results of more than 40 samples submitted to three different crime labs (blood, semen, and hair) found at the crime scene excluded both White and Winslow. Based on the results, Saline County District Court Judge Vicky Johnson ruled that while neither man was exonerated by the evidence, both were entitled to relief ... Winslow is expected to be released later this week with a sentence of time-served. Barring some new evidence against White, a new trial is unlikely."

    Your correct. The DNA evidence only excluded them from the crime scene. One likely released the other faces a new trial. Not proof absolute perhaps, but good enough to get these results.

    "According to Taylor: “I was coerced into taking a plea bargain and coached into testifying to what I was coached to testify to.”"

    Your also correct, that the woman is guilty of perjury. So by that standard, all false confessions (if repeated in court) are perjorous unless of course she actually was coerced.

    "which pretty well disqualifies her from being trusted."

    If her testimony helped get the men convicted in the first place, then getting her testimony disqualified from being trusted is pretty much what the defense wants.

  10. Bill Drissel:

    I await Conrad Black's commentary on the contrast between prosecution in the US and the rest of the English-speaking world.

    He has already compared the vastly higher conviction rate here and complained about perjured testimony from accomplices.

    Bill Drissel
    Grand Prairie, TX