From inadvertent error to reckless conduct to outright disregard for the defendant’s due process rights, prosecutorial misconduct permeates our criminal justice system to an alarming degree. The National Registry of Exonerations recently pointed to a record high number of cases involving government misconduct in 2016 (70 out of 166, or 42%), the most common of which involved prosecutors and/or police concealing exculpatory evidence. Prosecutors exercise unparalleled powers to charge, to dismiss, and to decide what penalties to seek and what evidence to turn over. But they operate with no transparency and little to no independent oversight, which has led to a countless number of false convictions and innocent lives wasted in prison.
Joey Watkins’ case represents yet another example of unchecked government misconduct and demonstrates its pervasive nature. The prosecution in Joey’s case introduced highly inflammatory and prejudicial evidence about a dead dog found by the cemetery where the victim, Isaac Dawkins, was buried. Specifically, prosecuting attorney Tami Colston claimed that the dead dog represented a “signature” or “calling card,” asserting at trial that Joey shot the dog in the head and dumped it near the victim’s grave just the way he shot the victim in the head because “he sure wanted that family to know he did this.”
When Joey’s attorneys demanded to know whether a bullet had been extracted from the dog and whether it matched the caliber of bullet used to kill Mr. Dawkins, Colston maintained that no bullet had been extracted and therefore she and the GBI could not and did not assess the bullet for comparison. The jury was left to surmise, however, that the bullets were the same – bolstered by Colston’s inflammatory assertions.
Sixteen years later, with the help of the Undisclosed podcast, GIP discovered that the Floyd County Police Department had in fact requested that the GBI extract the bullet from the dog’s head and compare it to the bullet from the victim’s head. When it became clear that the bullets were not even from the same type of gun, the evidence was buried and somehow disappeared. Even though the GBI witness handed the extracted bullet over to the prosecution before testifying, Colston nevertheless failed to disclose this and has never corrected her false representations. Had she disclosed the truth, the Court likely would have prohibited introducing the grave dog evidence entirely.
In our continuing efforts to #FreeJoey, GIP teamed up with Marietta attorney Ben Goldberg to file a habeas petition asserting that Colston: 1) committed Brady violations for failing to disclose exculpatory evidence, 2) introduced and solicited the introduction of false testimony and false representations to the court and then failed to correct that false testimony, and 3) in doing so, impeded the ability of Joey’s defense attorneys to effectively represent him.
In Joey’s habeas action against the warden of the prison where he is housed, the Georgia Office of the Attorney General represents the warden. The AG’s policy is to fight all habeas corpus petitions regardless of the facts or the law, unless the local prosecuting attorney recommends otherwise. Here, that local prosecuting attorney is Leigh Patterson, who now routinely prosecutes people in front of now-Superior Court Judge Colston. So, as we expected, the AG recently filed a response asking the Court to dismiss Joey’s petition.
This forces us to question who will hold Colston responsible for her misconduct?
Prosecutorial Oversight…or the lack thereof
Tami Colston never corrected her false statements to the court, she was never sanctioned by her office for making false representations, she has not been disciplined by the Georgia State Bar, and a 2011 US Supreme Court decision makes it virtually impossible to sue DAs or their offices for egregious prosecutorial misconduct. Instead, Colston now presides as a Superior Court judge in Floyd County where she prosecuted Joey.
This is not unusual. Despite ethics rules and bar disciplinary committees that are theoretically designed to check overzealous prosecutors, studies have shown over and over again that prosecutors are rarely disciplined. Indeed, due to a culture that disincentivizes reporting misconduct, an inherent conflict of interest to prosecute a fellow prosecutor, and a lack of streamlined procedures and resources to identify and investigate claims of misconduct once reported to disciplinary committees, these systems are so woefully inadequate that they are “nonfunctioning” in instances where prosecutorial misconduct is an issue. If these oversight mechanisms exist only nominally and the AG’s office continues to defend blatantly unethical behavior, the aggrieved will have nowhere to seek relief.
In the fight to #FreeJoey, GIP urges you to vocalize your support for stronger prosecutorial oversight. Remedies, as suggested in the links below, include:
- requiring prosecutors to turn over the whole file rather than cherry pick what evidence they deem important enough to share with the defense;
- formal written policies outlining a prosecutor’s obligation to avoid misconduct and clear sanctions for disregarding those obligations;
- annual reports that effectively increase transparency through data on charges, convictions and ethics violations;
- court opinions that cite offending prosecutors by name; and
- laws that limit prosecutorial immunity.
To be clear, we are not attacking all prosecutors. Most prosecutors have the best of intentions and work hard to promote justice, just as many DA’s offices recognize that justice is never served by falsely convicting and imprisoning an innocent person while allowing a guilty person to go free. But given the record number of innocent people exonerated last year due to prosecutorial misconduct (in addition to undocumented cases the depth of which we may never know), fundamental changes must be made in prosecutors’ offices to curtail this abuse of power, prevent future wrongful conviction, and restore integrity to our criminal justice system.
For more, see EXONERATIONS IN 2016 The National Registry of Exonerations (March 7, 2017) and Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson (March 2016)
 Connick v. Thompson, 563 U.S. 51 (2011). See also Imbler v. Pachtman, 424 U.S. 409 (1976)