Osler's Razor

I think it's great to see prosecutors with second thoughts about the death penalty. Each and every one of those decisions, literally life and death, should be made with all possible caution.

But don't we have an appellate process for the kind of "review" Watkins is talking about? I'd like to think this is more than a publicity stunt, but Watkins has to be re-elected, after all.
 

Trust me when I tell you that this is merely a political ploy. No prosecutor in Dallas ever tried a death penalty case where the guilt/innocence was "questionable." These cases are rock solid for guilt/innocence.

Furthermore, there are only 2 people with set dates for execution, presumably this would only delay their dates (unless courts set dates for others over the objections of the DA, which is unlikely).

Also, as pointed out, there is already a procedure for this including none other than the SUPREME COURT OF THE UNITED STATES. No matter though...Craig Watkins is above that.

This is a slap in the face of the prosecutors who tried these cases in the past, which includes current prosecutors who are now trying cases for death (as I type) for Craig Watkins.

I would like anyone to point me to a case in the modern era where an innocent man was sentenced to death. No prosecutor I've ever met is willing to risk his own conscience to do that.
 

By the way the objections are these:

1) nothing but politics is driving this

2) its a waste of time

3) it just so happens that the Dallas county commissioners approved a TV show (as requested by Craig Watkins) following the exploits of the "conviction integrity unit" in Dallas county, which coincidentally would be the unit investigating these cases

4) HE is not the law and final say in these matters

5)It's not as though prosecutors are just NOW "making these kinds of decisions with all possible caution"

6) There is no legal justification for actually requesting a stay to "look at evidence"

7) Slap in the face to the families of the victims who are waiting for justice and thought all of this was behind them.
 

I think it's great that someone with some common sense is actually taking the time to realize that the system is full of errors and is taking steps to try to remedy that. The fact that the result, if successful, will be the execution of a human being makes me sad, but that's another issue altogether.
 

As a future prosecutor who supports the death penalty, this is the first time I am proud to share the name "Craig" with someone. Prosecutors have a duty to seek justice, and that is what he is doing. Executing the innocent is not justice.

The biggest problem is in cases where DNA evidence was available, but there was not a way to test it. Think about the problems happening in Harris County because of potentional DNA exoneration.

I'm all for getting the bad guys and even executing those who committed heinous murders. But let's make sure they actually did commit them.

And if exonerating the innocent comes through the appellate process or through DNA testing, let's exonerate them!
 

You may also want to read this article:

http://www.chron.com/disp/story.mpl/headline/metro/6003611.html
 

Please don't presume to "know" Craig is seeking justice or that he "has common sense" before you actually meet the man. Basing your feelings about this man's motives and intelligence on one or two newspaper articles is not a smart move.
 

Anon: 9:09, 9:21 -

"Trust me when I tell you that this is merely a political ploy. "

You seem to speak about the man as if you have inside knowledge about his character that the rest of us do not. And you may. But telling other folks that they are foolish to make a character judgement based on the evidence they have about him while you don't disclose your information seems unfair. If you have reason to believe that he's a calculated politician that doesn't care about justice, only votes, then please share those reasons with us. But, please don't just ask us to "trust you" about a personal judgment on which the rest of your argument against his program is based.

"No prosecutor in Dallas ever tried a death penalty case where the guilt/innocence was "questionable." These cases are rock solid for guilt/innocence."

Again, you actually have evidence to confirm that every ADA in the history of Dallas County EVER tried a death penalty case on less than "rock sold" evidence? If so, please share with us where we could get such confirmation. I know it would help me feel much better about the County that raised me and what I hope to be my future employer. Without it, it sure seems like a lofty assertion, that again, underlies the rest of your argument.

"This is a slap in the face of the prosecutors who tried these cases in the past, which includes current prosecutors who are now trying cases for death (as I type) for Craig Watkins."

By that logic, the overturning of any injustice should be forgone out of respect for the work that had a hand in creating the injustice. That's just not persuasive.

"1) nothing but politics is driving this"

Again, please tell us why you think so, other than the fact that the Dallas DA is elected (surely not the fault of DA Watkins).

2) its a waste of time

If it overturns ANY conviction you would surely take this back, right? But even if all are confirmed, doesn't that do good as well? Wouldn't it be a good thing if we could say that all convictions withstood the scrutiny of the Conviction Integrity Unit?

3) it just so happens that the Dallas county commissioners approved a TV show (as requested by Craig Watkins) following the exploits of the "conviction integrity unit" in Dallas county, which coincidentally would be the unit investigating these cases.

I completely fail to comprehend how this is an objection to the principle of the program. All this does it re-iterate the much belabored point that YOU think Watkins is a shitty guy that only cares about politics.

4) HE is not the law and final say in these matters

Nothing about this program makes or attempts to make Craig Watkins the LAW or give him final say. In fact, some of the investigative units under Watkins (like the Innocence Project) have been purposely run w/out any DA's office oversight.

5) It's not as though prosecutors are just NOW "making these kinds of decisions with all possible caution"

If it's not a problem, why have there been such a disturbing number of exonerations in the past few years? If your assertion were true, these units would have found very little in the way of wrongful convictions. This has not been the case.

6) There is no legal justification for actually requesting a stay to "look at evidence"

I'm not sure what "legal justification" you're looking for. You may be right, but I guess I just don't know what you mean.

7) Slap in the face to the families of the victims who are waiting for justice and thought all of this was behind them.

This is not an objection to the program. It is an appeal to the passions of those who feel for the families of victims. Giving the family closure is not an acceptable a justification for taking an innocent person's life.
 

Anon 9:09 am said: "I would like anyone to point me to a case in the modern era where an innocent man was sentenced to death."

How about the 19 recognized by Watkins as justifying the actions he is taking. Anybody who thinks death penalty cases are always "rock solid for guilt/innocence" ought to do Google searches for Darryl Hunt and Ray Krone.

www.truthinjustice.org/krone.htm

Granted, my comments are coming from a public defender, and it is my job to question the state and its motives. I can recognize, though, that law enforcement gets it right more often than not. But everybody in the criminal justice system must realize that we are ALWAYS dealing with uncertainties. When dealing with past events and people who lie or don't always remember accurately, NOTHING is rock solid. If a public defender reaches a point where he believes that cops always lie and government is always corrupt, I believe he must quit because he has lost objectivity. Similarly, when a prosecutor starts believing in her own infallibility and feels her actions are beyond contestation, she must quit for the same reason.

We also must recognize the real issues surrounding confirmatory bias, as well as the general competitive nature between prosecutors and defenders that drive them to win. They play a significant role in the system.

When life and death are at stake, careful review should be the rule, not a subject of criticism.
 

Anon. 9:09,

I assume you've heard of the state of Illinois, which put a moratorium on their executions of some 150 inmates when they found crucial errors in the trials of almost all of them.

A simple Google search will give you dozens of cases where death row inmates were exonerated. Exonerated, mind you - not pardoned.

I also assume you've heard of the Duke lacrosse players that were nearly sent off to jail because an ADA decided that making his name public was more important than justice. He certainly didn't have any conscience when he was about to destroy the lives of several young men and their families. Bad people exist, and they're not always at the defendant's table.

*****

Anyway, I don't think that justice is ever something to sneer at, even if it's sought as part of a political ploy. Who cares if it is? It still may save someone's life. Not that the ends always justify the means, but this is one of those situations that it probably does.

And while there are appellate procedures for this type of thing, there are also organizations that do these reviews of death row cases outside of that process. If they can do it (and do it successfully), why shouldn't a DA do the same? That's his job, and I'm glad to hear that he's doing it. The Dallas government has been on the low end of morality lately and it's nice to see Craig Watkins counter-acting that in the ways that he can.
 

ebc 4

Again you are right to suspect I have more inside information than you do.

Judging by your response, nothing I say, even having more knowledge on the subject than you do, will convince you otherwise. But in an effort to be clearer with the rest of the readers, let me respond.

I have dealt with Craig when he was on the defense side and now the prosecution side. I will say that unquestionably his intelligence, legal analysis, basic knowledge of criminal law, and legal reasoning are less than suspect, if not downright laughable. This assertion is not just mine, but shared by many in the bar including most of his prosecutors, whom I've had the pleasure of working with as well.

My experience and opinions on his programs come from knowing the people involved and being directly affected by his policies. Since I consider myself a friend of those who actually tried death penalty cases in dallas and those that defended those being tried, in addition to sitting in on multiple death cases over the last 7 or so years, I can say with complete confidence that in not one single case I saw was guilt/innocence an issue.

I can't very well argue that it NEVER happened, that NO ONE EVER in Dallas was sentenced to death improperly. I can say with almost certainty that in the DNA era that has been the case. And I await the day that I'm proven wrong.

I don't stand in the way of justice and neither do families of victims, nor any prosecutors I have ever met. Unfortunately a fruitless exercise does nothing but insult those that lived through it the first time or risked their careers and reputations to try these criminals. It may not be a "persuasive argument" to you, but believe me that those things do matter in the criminal justice world.
The point I was making about prosecutors was that if you don't trust in what the prosecutors did before (and claim things like prosecutorial misconduct), how can he in good conscience continue to employ those same people, and furthermore have them try the newest death cases? It's just another reason to believe that this may be for political gain and notoriety rather than his personal crusade.

My reference to "caution" being used by prosecutors was in reference to Death cases. You are right to point out that there have been many exonorations based on faulty eye-witness testimony that have been overturned with DNA evidence for crimes such as rape and aggravated assaults/robberies. Craig has managed to take credit politically for these exonorations when most occurred before his arrival. In fact, a large majority have occurred without the need for a Conviction Integrity Unit. This leads many to believe that his motives are less than admirable when he accuses his prosecutors of misconduct.

I have not seen one shred of proof that there was any prosecutorial misconduct in any of these cases (no matter how much the Dallas News may wish it so).

Furthermore, death penalty cases are a different animal in the prosecutorial world. No prosecutor I have ever met wants to convict someone to death if they aren't sure about the guilt innocence. Those cases are pled to life in prison. I've been there when death cases are discussed and the decision is being made whether or not to proceed. These people, who are life-long prosecutors take the facts seriously and don't seek death on shaky cases. Plus cases are vetted by the senior prosecutors in an office before a go-ahead for death is requested from the DA.


I find it admirable that you don't object to the means to justify the ends. I, "unfortunately", think it is very valid to object to a program based mostly on politics or notoriety.
You seem to think that if Craig wants to hold of on following the law on executing those convicted simply to have a good TV show then he should be allowed to do so because you think there is a possibility, no matter how remote and improbable, that someone might be found innocent As optimistic as that is, it's not realistic.

That brings me to my other objections. There is already a procedure in place that reviews these convictions, in fact, it's automatic under the law. Craig is now deciding to bypass this procedure and make decision that aren't his to make. He played no part in those convictions. (mind you he's not reviewing any death penalty sentences under his watch) Unfortunately for him, he has to have a legal basis for requesting the stay of an execution date. Time to review the case isn't one of them. Because the courts already do this, in addition to defense attorneys, the innocence project, anti-death penalty advocates, etc etc, Craig, in my opinion, is merely delaying the process for his own benefit, since as I stated previously, I have confidence that these convictions are "rock solid."
Unfortunately, waste of time and resources is an important objection.

It would be nice to say that the convictions withstood the scrutiny of the Conviction Integrity Unit, but why not go down the slope further? Law students should review these cases after the courts are done, then we could pass it on to the innocence project, then the appellate courts, then then supreme court, then Conviction Integrity Units from other states could have a look, then the defense bar in said county, then any other organization set up for the process, or a TV show, or the next 4 DAs. The point is that at some point in time justice needs to be done and that is the death penalty.

Craig can take credit for

There are a number of things that Craig's administration has done to improve Dallas County that I can laud him for. However, that's not the question before us. You may buy into the hype and if you do become a prosecutor, I'm sure many of your feelings will change. Until then, I'm certain much of what I say will fall on deaf ears.
 

As a prosecutor and employee of Mr. Watkins, I feel confident in saying that people should focus on Osler's original question.
It seems that as AZ public defender said, people have to remain objective no matter which side they fall on. But I also agree that there are probably ulterior motives for Mr. Watkins begining this review which to many it seems, doesn't matter, so long as the ends are justified. I don't share that opinion and would wager (and pray) that this review will not result in much other than publicity for the office. Which incidentally is good for me!

I leave it to the rest of you to come up with reasons why this shouldn't be done, or hypothesize why this isn't done more often around the country..which I think was the original question. Mind you, some of you might have to put aside your belief that "one innocent is too many" to come up with a couple of reasons.
 

Anon:
My point was this:

Your objections to this project are primarily based on your opinions about the man executing it, not on the principle that underlies it. These opinions are based on your experience which you admit includes insult to your friends and colleagues that had a hand in the work now being reviewed.

Yours is not a principled objection to the program. It is a subjective assessment of WHY the program was implemented and what you EXPECT its results will be based on your distrust in Watkins and trust in those that came before him.

I did not advocate for a "means justify the ends" assessment. You're mixing terms. You didn't attack his means. You attacked his MOTIVATION for implementing those means. I simply pointed out that however right or wrong you may be about why he has done what he has done, you haven't presented any objections that stand up without being supported by the assumption that Watkins is corrupt and the prosecutions being reviewed are legit.
 

Can a conviction sentencing a human being to death ever be "rock solid" enough? I'm not sure that it can.

There mere fact that an act of a politician is political does not make that act suspect or incorrect. If Mr. Watkins constituents wish him to take a closer look at death penalty convictions and use greater discretion when seeking the death penalty, then I applaud him and his constituents. Sometimes representative government works to produce a just result.
 

Then to answer Osler's original question: Yes, why not? We tend to be arguing over whether oversight and review in death penalty cases is a bad thing. How could review be a bad thing, especially where the review is done by someone who has the best access to evidence--disclosed and undisclosed, admitted and not admitted--and is in a position to do something about it if something comes up?

Putting away insinuation about motives (political or otherwise), how is this a bad thing?

The feelings of the victims' families should not play a role in our debate, as they are the people least likely to know that a review of the state's file is occurring in the state's office. Justice can't be afraid of trampling emotions. Anybody with any experience with the system knows that at any important sentencing or disposition of a case, one side of the room is going to feel slighted, whether they be victims wanting more vindication or families wanting more mercy. The justice system has to put aside fear of trampling on emotions in order to reach just results.

We can't be scared to step on the toes of prosecutors who originally handled the cases either. First of all, their egos aren't that fragile. Second, our Constitution is created around the idea of checks and balances--the more checks, the better.
 

Perhaps the most interesting quote of the day:

"No prosecutor I have ever met wants to convict someone to death if they aren't sure about the guilt innocence. Those cases are pled to life in prison."
 

I disagree with az's comment about victims. A good prosecutor must consider the victim, the victim's family, the convicted and even the convicted's family. The DA represents us all.

To respond to the Professor's question, I suspect that this sort of thing is not done for several reasons: first, most DA offices are overworked, and have limited investigative resources to spend on closed files. Second, any genuine efforts made to review/ re-investigate closed case files risk lowering morale, both within the office and between the office and local law enforcement. Furthermore, publicity surrounding these reviews usually contributes to an increased distrust of these offices by victims and the public (perhaps rightly so). Therefore, I disagree that this move is politically savvy, as the DA who makes it risks losing far more than he gains, in a political sense.

One example of the dichotomy of politics vs. justice is the Roy Criner case:
http://www.houstonpress.com/2000-08-03/news/innocent-at-last/

This is a very interesting case because of the procedural and investigative steps used to help exonerate Criner (after 10 years of imprisonment) and the animosity that it bred locally between judge, DA, local law enforcement and the public (including local and national media).

Reopening one file, never mind forty D/P cases, is a risky move. Such an action inevitably betrays a deep mistrust in the prosecuting attorneys and law enforcement involved. It promotes mistrust of the same by victims and the public.

A DA should never reopen a file unless he has a darn good reason to do so. However, if such a reason exists, then he is duty bound to do so, regardless of the consequence.
 

The Razor has a better discussion of stuff like this than almost any other source I've seen, with different knowledgeable perspectives.
 

I don't say this as a future intern of the Dallas DA (hopefully), I say this as an average Joe:
If there is a case that may seem questionable, investigate it.
If the case occurred when the DNA equipment was around and that was used, it probably is best to drop it.
If there is a case that is clearly correct without new tests, don't bother.
However, every person deserves the day in court and the right to a lesser charge. If there is a reason to look deeper, do it!
The way I look at it is like this: We have a few people off death row at the most and it helps the DA because now they are good people for making sure it was correct instead of just trusting the conviction of others to do the right thing.
Or, we have none and it helps the DA because they had it locked down from the start.
I don't think a little bit of reviewing ever hurt anyone.
I know a certain anonymous sees it as a political issue; however, that person hasn't put down real sources and won't even leave a name so that person is likely scared to be associated with the comments and doesn't seem to be credible.
Even if it is a political tool, it is a good idea. It isn't difficult to find out who I am and I stand by the things I said. Even political tools for re-election can benefit the community.

I wouldn't see it as a slap in the face if someone reviews a case I worked on. If I get someone the death sentence, I want it to be appropriate. I think anyone that sees this as an insult is looking past the nature of the judicial system. If this means I don't get the internship, I'd rather lose it. These are my convictions. I'll stand by society to the death. However, I won't be insulted if someone finds out the police and I had it all wrong.

With regard to DNA proving a not guilty, I don't think anyone would be insulted because they probably still have plenty of correct convictions.

At the end of the day, my opinion isn't worth much. However, it is mine and I firmly believe in it. Reveal your sources and who you are and then I may add weight to your statements. I don't see how checking for mistakes is an insult. Finding out that we made a mistake is just a part of the learning process. The greatest wrong is to think you are above learning.

Tax dollars will be spent; however, what is the actual harm?
 

I'm really loving this discussion. And now I have some questions for you all:

ebc4 - if we DO assume that the motives were corrupt and the convictions are legit, do we still go ahead and review?

az - Obviously emotion plays a role in this process, since I'm sure you've made pleas based on emotion for your clients during punishment phase. But why shouldn't it also be considered by a prosecutor when determining what a just punishment should be? As the "voice for the victim," shouldn't the prosecutor take into account that emotion to a higher degree?

ginger - I agree that reviews of cases cause morale problems and create distrust between the law enforcement community, families, etc. But do you think that such a move 1) helps create trust in the community for the DA/system and thereby making jurors more likely to convict? or 2) creates more mistrust in the community making jurors question things more than they would creating more NG verdicts? and why do you think that is?

liberal - good luck on getting the job, we need more Baylor lawyers here. I will say that it would upset me to find out that I was wrong (when I'm beyond a reasonable doubt sure). I imagine it would be like some of those jurors feel when a person they convicted is set free. The point I think Anon was trying to make was that Mr. Watkins actively seeking out error (as though it exists) is insulting to the people that tried the cases who are convinced that no error exists. That feeling changes, no doubt, if error is found but the "hunt" for it can be a morale killer. And when motives are factored in, it can be even worse. Thus I'm not suprised some people may want to hide their identity when speaking their minds. As great as this job is, it's still depends on the whims of a politician who wouldn't want negative and PUBLIC comments that insult him. Before you start saying "he should quit" etc. consider what recourse you have if you love the job, have bills to pay, but don't like your boss, or might be someone different in 4 years.

I will tell you all that this decision has not been well recieved in the office by the prosecutors I've talked to. Why? I'm sure it's many of the things mentioned by all and probably more. If I get some more insight in the next day or so, I will post here.

So, Liberal I ask you to consider these discussions when you get the job and you've spent months working on a case, talking to victims families, and have convinced yourself you've done all you could and that you are right....not only will you be better for remembering all of this, but you might think differently as well.

Your last question asks "What's the harm" Wasn't that the original question Osler asked? Or were you just being rhetorical?

My question is, can you come up with one, a harm that is?...or even want to?
 

Dallas,
For every vote won, I believe that two may be lost. Yet, if the price were only the reduction in death penalty sentences due to the doubts of jurors, I perceive no victim.

I recognize that these situations place the DA between Scylla and Charybdis. Yet, if there is a genuine reason to reopen a file, then potential morale fluctuations become irrelevant to (but still a genuine consequence of) that decision. A lawyer can lose more than his livelihood by ignoring his conscience.

But, who ever said that being a good DA (or lawyer for that matter) was easy? Politics and justice make strange bedfellows, and the DA walks the finest line. I am just grateful for honorable lawyers like you who put the cap on day after day.

Great discussion!
 

Good stuff from everybody.

Dallas ADA,

Yea, I think we do. Here's why: The merit of the idea doesn't change based on the motives, and I think it's a good idea. The use of precious resources is a compelling concern to me. The other considerations dealing with insult or heartache, while real, are not adequate reasons, in my opinion, to forgo the possibility of ensuring that justice was done.

B/C, for me, those are the factors, it's a balancing test. Are the possible gains from doing it outweighed by the time and effort that it takes?
I balance these factors like this:

1) I think that one innocent person put to death is the greatest injustice that we can see at the hands of our system. I understand reasonable minds can disagree on that point. Because of this belief, I think the burden created by the execution of the program would have to be extraordinarily high to outweigh its benefits.

2) I don't see the burden on resources as that high in relation.

-Ed
 

Dallas ADA,

Do you know if Mike Ware is doing this investigation too?

I too am a Baylor Grad and a recent grad from the Family Violence Internship at the Dallas DA's office. I interned with Mike in undergrad.

Thanks.
 

I assume Mike Ware will be handling this investigation being the head of the Conviction Integrity Unit.

And I imagine, as noted, this will be an integral part of the TV special they are doing, so if nothing else, you all will get to see it at work.

ebc4 - I'll ask one last thing since there are other issues on Razor to discuss (swissgirl was asking why anyone would want to carry a gun on another post).

When does it stop being a good idea to review? Won't, in your analysis, the possible innocence always outweigh the loss of resources? When do we stop reviewing and actually execute someone? And who should make the determination to stop?
 

Dallas,

Man, I guess that's the money question, isn't it? I don't have a great answer.

Here goes: All leaders eventually have to trust that the principles they've tried to instill in their team will become the status quo (no need for "mother henning"). Until then, though, new leaders must make sure that any potentially detrimental remnants of the old way of doing things are accounted for and corrected if need be.

The situation being dealt with in Dallas is a product of a change in principles. It's a scenario specific remedy. Once all the "questionable era" death penalty convictions are checked, we move forward with the traditional methods of recourse (appeals, etc.)

I don't know, really, I'm not even sure that answers the question.

-Ed
 

The more honest answer is this - I'm probably never going to hear of a plan like the one Watkins in executing and think it's a bad idea.