Special Prosecutor: Contempt Proceedings against Watkins Threaten all Texas DA's

Editors Note: Chad Baruch, a board certified appellate attorney in Rowlett, is the special prosecutor for the Dallas County District Attorney’s Office in State v. Hill for both the contempt proceedings and appeal of the dismissed criminal indictments.
By Chad Baruch
Special Contributing Writer for The Texas Lawbook
(April 30) – Newspapers across Texas have covered the contempt proceedings involving Dallas County District Attorney Craig Watkins. A Dallas judge held Mr. Watkins in contempt of court for refusing to answer questions concerning his decision to pursue and procure grand jury indictments against Al G. Hill III, heir to the Hunt oil fortune, for mortgage fraud. Most of the media coverage has focused on whether Mr. Watkins properly refused to answer these questions.

Mr. Watkins remains confident that he will prevail on that issue in court. As a prosecutor, however, he also believes Texans should understand both the principle of justice he considered important enough to justify the risk of being held in contempt of court, and the risks to the pubic if criminal defendants are permitted to question prosecutors about the exercise of their discretion in bringing criminal cases.
The DA’s Office presented the case against Mr. Hill to a grand jury, which issued multiple indictments for mortgage fraud. Just months before Mr. Hill’s trial, the court permitted defense lawyers to put prosecutors— including Mr. Watkins—on the stand and question them under oath about the case. Mr. Watkins believed this was improper and would compromise his office’s ability to protect the citizens of Dallas County.
American prosecutors enjoy broad discretion in determining when to bring criminal charges. All of us understand that the government lacks the resources necessary to prosecute every person who commits a crime. We also realize that not every crime deserves to be prosecuted. Each day, prosecutors across the country make decisions about which defendants to charge, what charges to seek, and whether to cut sentencing deals or proceed to trial.
This discretion enables prosecutors to direct scarce public resources toward the most important cases, be responsive to crime patterns in their jurisdictions, make plea bargains that maximize the system’s ability to punish crime, and protect citizens from charges that do not advance the public interest.
To prosecute crimes effectively, the District Attorney and his supervising attorneys require the benefit of candid recommendations by other staff members. Assistant district attorneys must render unbiased advice about whether to bring criminal charges and how to prepare for trial. In doing so, they discuss the strengths and weaknesses of the evidence, the likelihood of success, and the best strategies to obtain conviction.
If a criminal defendant may obtain information about these internal sessions and opinions, the public faces the grave danger that prosecutors no longer will feel secure in providing the candid analysis essential to the sound exercise of prosecutorial discretion. They also face the prospect that criminal defendants, now armed with advance notice of prosecutors’ case assessments and strategies, will enjoy unfair and nearly insurmountable advantages at trial. These are, in fact, the very reasons that an attorney’s trial preparation and strategies are considered off-limits to the opposing side.
These dangers are especially acute in cases involving wealthy defendants. Defendants with vast financial resources should not be able to intimidate public officials or handicap prosecutors by putting them on the stand and questioning them in advance of trial.
These are hardly controversial principles. As far back as 1946, in Hickman v. Taylor, the United States Supreme Court recognized that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.”
As a result, the law protects what is known as an attorney’s “work product.” This protection insulates an attorney’s legal theories, strategies, and mental thought processes. It ensures that lawyers working on a case may discuss their assessments and strategies freely without worrying about the other side knowing them.
This makes sense. How could our system possibly function if one side’s lawyers could put the other side’s lawyers on the stand and question them about their case in advance of trial? Moreover, what criminal defendant wouldn’t want to put the District Attorney on the stand three months before trial and ask for his assessment of the prosecution’s case? Criminal prosecution as we know it effectively would cease to exist. The danger is apparent.
Independently, forcing the disclosure of factors involved in the exercise of prosecutorial discretion could confer tremendous advantages on criminals. Consider, simply by way of example, a district attorney who decided that as a matter of resource allocation, only persons arrested with more than x grams of cocaine would be prosecuted for distribution.
Making this legitimate exercise of discretion public would flood the jurisdiction with cocaine, as large-scale distributors would move their operations to place where they knew precisely how much cocaine their couriers could move without risking prosecution. The risk to public safety would be enormous. This is just one example of the need to keep prosecutorial discretion shielded from public view.
To protect the public and permit our justice system to operate properly, the internal assessments and strategy sessions associated with the exercise of prosecutorial discretion must remain confidential—just like trial preparation by other lawyers.
Mr. Watkins has, by any reasonable measure, been a national leader in promoting transparency in our criminal justice system. But even he could not sanction the invasion of his office’s internal strategies and case preparation by a criminal defendant in advance of trial.
Of course, some observers have questioned why Mr. Watkins permitted two of his assistant district attorneys to testify if he believes so strongly in shielding the exercise of prosecutorial discretion.
The answer is simple. Mr. Watkins was prepared to accept the media scrutiny and potential judicial consequences of his actions. Indeed, he viewed it as necessary to vindicate important principles of justice. But while Mr. Watkins does not doubt the commitment or courage of the men and women who work for him, he was not willing to require two junior prosecutors—both of them with young children at home—to face those same consequences.
In summary, Mr. Watkins believed that the questions Mr. Hill’s lawyers sought to ask invaded the protected work product of the DA’s Office by requiring disclosure of discussions among the prosecutors about the strengths and weaknesses of the case against Mr. Hill, their strategies for obtaining conviction, and their overall assessment of the case. Mr. Watkins sought to defend a prosecutor’s right to keep such internal assessments and discussions confidential. In doing so, he was protecting not just himself but prosecutors across Texas and, most important, the citizens of Texas.