The Dallas County Courthouse, 1952
Henry Wade sat up and focused his gaze on the 12 men filing into the jury box. He was looking for something: a telltale sign in the eyes, a nervous tic in the mouth, something awry in the gait. Something.
To his right, defense attorneys Maury Hughes and Ted Monroe also watched the 12 men intently, though with occasional apprehensive glances at one another. To their right, 52-year-old Rebecca Doswell stared straight ahead, her pale aristocratic countenance impassive.
The 12 men seated themselves one by one, some of them shifting nervously in their hard wooden chairs. But none of them gave anything away.
Henry Wade was not surprised. He’d watched enough juries re-enter the courtroom to deliver a verdict to know that the 12 solemn faces rarely gave anything away. It was quite different from when they first entered the courtroom to be selected for a jury. They were often animated in their words, gestures or postures. Or their chins. Henry Wade had a theory about chins. A man’s chin, he believed, betrayed his ability to stand up under pressure – like the pressure of the decision to sentence a woman to life in prison. “Tough chins” were the best state’s jurors to be found.
But let a jury leave the courtroom to deliberate for even 15 minutes and it would return blank-faced. Though it didn’t surprise him, it bothered him sometimes. Especially now. The jury had convicted Mrs. Doswell. a wealthy socialite, of the murder of her husband that hot August afternoon at the Melrose Hotel. But that didn’t matter a damn if they didn’t return the life sentence he’d asked for her. She deserved it, for one thing; most murderers did. For another thing, Henry Wade didn’t like to lose.
He scanned the faces again. Nothing. He had to admit it just didn’t seem to be a life sentence case, even though the old lady was guilty as sin and deserved whatever the law would allow. But the prosecution was controversial; most people were surprised he took the socialite to trial; as one man wrote to the Dallas News, “You just can’t prosecute a million dollars.” Worse yet, the district attorney’s case was wobbly as a two-legged stool: no eyewitness to the murder; a murder weapon that turned out to be the family gun; a motive theory heavily disputed by Mrs. Doswell’s testimony.
The lyin’ old biddy, he thought to himself. From the outset, the D. A.’s case had rested on jealousy: Thomas Doswell, a spring chicken compared to the old lady, had been known to do a little playing around. That kind of thing had led to more than one murder. But of course Mrs. Doswell had claimed rather convincingly on the stand that she and Tom had never had an iota of trouble in 30 years of marriage. Okay, if that was the case, why did she have that Pinkerton man tailing him all over town? Henry Wade hoped the jury remembered that. And how Mrs. Doswell had claimed with a perfectly straight face that the shooting was an accident. Which had held up until the prosecution had ambushed Hughes and Monroe with a surprise witness who said she’d heard two shots, not one, that afternoon. Two accidental misfirings from an expensive revolver? Come on.
Henry Wade wanted to win. There was the principle of the thing, of course; that mattered. But there was also a … well . . . political edge to the case. The Doswell trial was his first real challenge. Dallas had responded well so far to his fire-and -brimstone style of law and order. But putting a murderer or rapist behind bars for life was one thing; putting a wealthy woman, who in the eyes of some had the right to kill her husband, behind bars was another thing entirely. Dallas was a tough-minded law and order town, but it was also a town of middle class mores. Step on toes if you must, but make sure they’re the right toes. No, Mrs. Rebecca Doswell was not an open-and-shut lifer. Not at all.
His only chance was the jury. He thought he’d done a damned good job there. Every defendant had his or her potential lynch mob; Mrs. Doswell was no exception. So he’d looked for stern-faced working class types, the sort who would resent Mrs. Doswell’s wealth and social position. More important, he’d searched for men with some trace of marital trouble in their backgrounds, the type who would not be . inclined to believe anything a woman said, let alone some nonsense about never having any trouble with her husband. Even if the facts of the case were shaky, the prosecution could make up for it if the jury had the right attitude toward the defendant.
Henrv Wade watched the bailiff take the small slip of paper from the jury foreman and carry it to the judge. The expressionless judge methodically unfolded the slip of paper and read it to himself. Still no sign. Then his deep, steady voice began to fill the courtroom.
“We, the jury, having found the defendant guilty of murder in the first degree,” – Henry Wade looked at the jury; nothing – “do hereby sentence her to life in prison.” A murmur rippled through the courtroom; the jury appeared to heave a collective sigh of relief; Hughes and Monroe glanced at one another disconsolately; Rebecca Doswell stared straight ahead.
Henry Wade smiled. The law according to Henry Wade was here to stay, and now Dallas knew that the 37-year-old D. A. intended to make it stick. That went for drunken drivers, bigtime gamblers, sleazy fences – and it went for wealthy socialites, too. The law according to Henry Wade would be tough, uncompromising, and more than anything else, it would be inescapable.
And it would be just that for the next quarter century.
From the beginning, Henry Lorenzo Wade had a passion for prosecution. Even as one of 11 children, he stood out for his competitiveness and will to win. His father was a prominent attorney in Rockwall County, but times were tough, particularly for the middle child, Henry, Jr.
Five of his brothers would go on to become attorneys, but Henry was always clearly the standout: valedictorian of his high school class in 1933; president of the University of Texas Law School his senior year, graduated with highest honors in a class that included John Connally; county attorney of Rockwall at age 24; special agent for the FBI in Dallas from 1940 to 1943, when he participated in the capture of some 30 German spies involved in a plot to steal the plans of the Nordheim bomb sight; highly decorated Navy officer in the Pacific theater.
“Henry liked to win above all else,” one long-time acquaintance recalls. “He liked to win at games and he liked to win at life.”
Despite Wade’s methodical style, the crucial decision of his life – to run for district attorney of Dallas County – was made on a lark. When Wade got out of the Navy and set up practice in Dallas in 1946, he quickly realized there wasn’t e-nough law around to keep food on the table. Not a political expert, he nevertheless realized that Dallas was ripe for a reform candidate for the D. A.’s job. The city had been wide-open for the past decade: numbers and policy rackets flourished, and casino gambling went on virtually ignored by the police. (One casino, operating out of the Southland Hotel, delivered $2000 each month to city hall, to take care of “future fines.”)
The D. A.’s office, though not suffering from the corruption rife in the police department, was understaffed and underfinanced. District Attorney Dean Gauldin simply didn’t have the firepower to get the city’s most notorious criminals and racketeers behind bars, so the courthouse was virtually run by a pair of defense attorneys, Maury Hughes and Ted Monroe. If the city had an attitude toward law and order in those days, it was simply live and let live.
But Wade sensed a vague discontent in the Dallas citizenry with the city’s lawlessness. Dallas had passed through its adolescent “boom-town” period; it was ready for leadership.
Henry Wade decided to run for district attorney. As his longtime friend Tom Unis says, “Henry just came up to my office one day and said ’I’m running for district attorney. Will you help?’ That was it. That’s just the way he was.”
But unfortunately for Wade, someone else had sensed the need for a reform candidate. Though Will Wilson was a less impressive figure than the strapping, handsome Wade, he was considerably more well known locally. After a tough eight-man primary, in which Wade finished third, Wilson was elected in a runoff. But the young lawyer from Rockwall had made an impression on Dallas – and on Wilson. The day after the runoff, the new D.A. hired Henry Wade as one of his chief prosecutors.
Wilson’s track record in the courtroom was mediocre. Hughes and Monroe continued to dominate the courthouse, and though Wilson led sensational raids on gambling parlors and brought some of the city’s bigtime criminals to trial for the first time, most of them still spent little time, if any, behind bars. Most of the successful prosecutions by the D. A.’s office were the work of Henry Wade.
So when Wilson resigned in 1950 to run for state attorney general, Wade easily beat two token opponents for the district attorney’s job. Wade’s task was to change the image of the D.A.’s office: to prosecute the most notorious of Dallas’ lawbreakers and to prosecute them effectively, which required convincing juries to sentence criminals to the maximum allowed by the law. Building general public confidence in the efficiency of criminal prosecution in Dallas meant not only putting the bigtime gamblers and murderers and thieves behind bars, but also petty thieves, smalltime swindlers, and drunken drivers.
Wade also had to take on the defense wizards – Hughes and Monroe – and beat them. Then, and only then, would the city’s criminal element sit up and take notice of the new regime at the courthouse. Wade selected as his test case pawnbroker Tommy Swartz, reputed to be the head of a large burglary ring in the city. Swartz, according to the allegations, was a smart businessman who not only tipped off burglars to particularly vulnerable residences in high income neighborhoods, but also fenced the stolen goods – mainly jewelry. Wilson had tried to convict Swartz twice, but both trials ended in hung juries. If Wade could successfully prosecute Swartz, he’d be sending a message to the city’s criminal element – and to his reform-hungry constituents.
Wade convinced a jury to give Swartz the maximum – 99 years -and then, while Hughes and Monroe were still reeling, took after accused racketeer and gambler Harry Urban. Once again, Wade got the maximum – four years. A string of successful prosecutions kept Wade’s name in the headlines: a death sentence in 1949 for the “love burglar,” Fred Adair, who criminally assaulted a Dallas housewife; death for hillbilly musician “Uncle” Robert Johnson, who murdered a Dallas policeman; a series of convictions of arsonists involved in racially-motivated firebomb-ings in South Dallas; and finally, a life sentence for Mrs. Rebecca Doswell.
At the same time. Wade launched a major “get tough” policy on drunken drivers. He did so partly in response to public indignation after a suspended sentence was given to a drunk driver who had killed a child in South Dallas during the Wilson regime. Like most of Wade’s campaigns, the philosophy was simple: drunken drivers were to be dealt with as dangerous criminals, their autos as deadly weapons, and they were to be prosecuted and punished as swiftly and as certainly as any other felon.
In the year before Wade’s election, there had been only 125 convictions for driving while intoxicated. During his first three months, Wade convicted 140 drunken drivers, and sent half of them to jail. By the year’s end, the war on DWI’s had produced 1,225 convictions.
The DWI campaign was in many ways the foundation of the law according to Henry Wade. Wade has always understood that the man on the street views bigtime crimes in the abstract. What really concerns the average taxpayer (and voter) are crimes that affect the quality of his daily life: vandalism, hot checks, pornography, prostitution, child molestation, dope, swindling, and drunk drivers. Wade’s campaigns against pornography, hot checks, and white collar crime have done as much to sanctify him and solidify his position over the years as his spectacular prosecutions of “major” criminals.
Wade ended his first year of tenure with a stunning record: 1002 convictions, including 132 trials, only seven of which resulted in acquittals. He had produced 13 death sentences, seven life imprisonment sentences, and convicted 746 hot check writers, more than half of whom went to prison.
Moreover, he initiated a unique “open door” policy. Even today, Wade rarely sets appointments, and will see almost any citizen willing to wait. “A D. A. ought to be available,” he says. “A defendant, or members of his family, or a victim has a right to have things explained to him. When anybody gets arrested, especially for the first time, it scares them to death. While I have never used my private discussions with defendants in any way in their subsequent proceedings, sometimes a few words can keep them from ever getting in trouble again.” In that sense, Wade has been more than a fine prosecutor and a clever politician; he has been a legal ward heeler.
So impressive was Wade’s performance during his first year, that reform-hungry Dallas seemed to ignore the fact that two of the new D.A.’s biggest convictions – Swartz and Urban – were reversed by the Court of Criminal Appeals. These were signs that the law according to Henry Wade could be zealous to a fault, but Dallas in the early Fifties couldn’t have cared less: there was a job to be done, and Henry Wade had shown that he was the man to do it.
Since then, Henry Wade has never been seriously challenged in a bid for re-election. His prestige has rested on numbers, the physical evidence that’s hard to challenge, but it has been reinforced by the man’s political instincts. Wade has understood, for one thing, that maintaining his prestige requires that he, the embodiment of law and order in the county, be seen in the courtroom, prosecuting for the state. Two of Wade’s most spectacular personal prosecutions illustrate his flair for public relations.
The first is the 1957 trial of insurance promoter Ben Jack Cage. The Cage case arose from a special grand jury probe into the scandal-tainted collapse of two Dallas insurance companies – ICT and Physicians Life and Accident Casualty. Cage was a former president of ICT, expected to be a key witness before the grand jury – and a central figure in the entire scandal.
Cage was subpoenaed, but the flashy 40-year-old promoter had flown the coop to South America. Wade immediately launched efforts to extradite him, but the promoter was skipping all over South America always one step ahead of the law. Word had it he had settled in Brazil, which had no extradition treaty with the United States.
Then one night, Wade received a phone call from one of Cage’s attorneys.
“Henry, I know where Ben Jack is,” the lawyer said. “He’s in Mexico City.”
Wade pondered a moment. “Let’s pay him a visit,” he said.
Wade, Cage’s lawyer, and the grand jury foreman caught the next plane to Mexico City. The meeting with Cage was widely covered by the press, who portrayed Wade as “the lantern-jawed Dallas district attorney.” Wade got two signed statements from Cage concerning the Dallas insurance scandal, as well as an agreement to return to Dallas for further testimony before the grand jury.
When Cage returned to Dallas, he also faced two indictments, one for allegedly embezzling $100,000 from a subsidiary of his Jack Cage and Co., the other for allegedly absconding with half a million dollars from ICT. Cage’s testimony before the grand jury was a disappointment: he repeatedly claimed no knowledge of the various allegations in the scandal. Wade finally got fed up and set trial for the promoter.
Cage was blase about the whole affair: “If they stick to the facts, and don’t make a circus out of it,” he told reporters, “I’ll get a fair trial. This whole thing is a smear.”
The jury didn’t think so. After a short trial, it sentenced him to the maximum, ten years. Cage appealed, was freed on $7,500 bond, and split for Brazil, never to return.
For the next five years, Wade continued to try to get his hands on Cage, but without an extradition treaty it was impossible. He convinced the State Department to cancel Cage’s passport, making it impossible for the fugitive to leave Brazil for any country but the United States, but Cage seemed quite comfortable in Brazil, where he was setting up a timber company.
Many in the legal community felt that agreeing to the low appeal bond set on Cage was a crucial error, an ill-advised display of leniency from the normally uncompromising Wade. But the public continued to see Wade as a hero, a tough-minded prosecutor who’d done all he could to bring a criminal to justice. Wade’s sensational pursuit of the fugitive into Mexico was what stuck in the minds of his constituency.
Public opinion also outweighed the criticism from the legal community in Wade’s prosecution of Jack Ruby. Though it seemed an open and shut case – after all, millions had witnessed the murder of Lee Harvey Oswald on television – there were serious prosecutorial problems: one involved Ruby’s sanity, the other the venue of the trial. Ruby’s attorney, Melvin Belli, was a master of the insanity defense; moreover, if the trial were moved out of Dallas, Wade would lose the advantage of the city’s feverish desire to see punishment done for the agony it had endured.
Wade won on both counts. He beat Belli’s complex insanity defense with an adroit job of jury selection; in The Trial of Jack Ruby, John Kaplan and Jon Waltz characterize the jury as “intelligent and without a gleam of mercy.” And despite the obvious arguments for trying Ruby outside of Dallas, Judge Joe Brown flatly denied all defense motions for a change of venue. In March, 1964, Jack Ruby was convicted and sentenced to death.
Henry Wade’s victory was a hollow one. The conviction was promptly appealed and reversed by the Texas Court of Criminal Appeals. The court admonished Judge Brown for denying the change of venue and indirectly criticized Wade for some of his prosecutorial tactics. The case for Ruby’s malice in the Oswald murder had rested on the testimony of Dallas Police Sgt. Patrick Dean, who had elicited an incriminating remark from Ruby during questioning at the Dallas city jail. Ruby had told Dean that he’d “seen Oswald in a police line-up two nights before, and that when he saw the sarcastic sneer on Oswald’s face, he decided that if he got a chance to do so, he would kill him.”
In its reversal opinion, the Court of Criminal Appeals said, “Obviously this statement constituted an oral confession of premeditation made while in police custody and therefore was not admissible.” While the error was essentially Judge Brown’s, Wade took his share of criticism from the legal community for the gaffe. After all, if the district attorney’s job is to prosecute the laws of the state, it is also to prosecute fairly and within the bounds of proper procedure. The Warren Commission’s characterization of Wade’s statements at a press conference following the arrest of Lee Harvey Oswald as “lacking a thorough grasp of the evidence” and creating “the basis for distorted reconstructions and interpretations of the assassination” also suggests something about Wade’s overzealousness. But the criticisms of both the legal community and the Warren Commission were largely ignored by Wade’s constituency.
But if Wade has been extraordinarily successful in holding on to the district attorney’s office, his other political forays have been failures. In 1956, riding high on the success of his first term as D.A., Wade decided to take on the controversial conservative Republican Congressman Bruce Alger. Alger had ridden into Congress on Eisenhower’s coattails in 1952, but he had quickly incurred the wrath of the city’s Democratic Party establishment-meaning John Stemmons and company. Alger’s election was one of the first signs of the growing Republican majority in North Dallas. The Democrats, who’d controlled the county at virtually every level for years, didn’t like the precedent at all.
Wade seemed the ideal candidate: young, handsome, and solidly conservative on the key issues of law and order, anti-Communism, and integration. The Democratic leadership didn’t have to do much persuading to get him to run.
The campaign was bloody: Wade made almost daily charges against Alger, hammering hard against integration. But Alger was no stranger to street-fighting, and in the end, Eisenhower’s coattails swept him back into office, despite a respectable showing by Wade.
Wade didn’t like losing, and the loss solidified his resolve to remain a prosecutor and to become the best District Attorney in the United States. As Wade says today: “Losing that election was the luckiest thing that ever happened to me.”
In 1964, Wade had another shot at higher office – a federal judgeship, for which he had apparently been considered in 1960 by John F. Kennedy. With Lyndon Johnson in the White House, his appointment seemed a sure thing.
The story goes that Wade’s appointment papers were literally on President Johnson’s desk, awaiting the President’s return from Europe for formal signature. But Attorney General Robert Kennedy and House Speaker Sam Rayburn had a last minute discussion about the appointment. Kennedy said he thought Wade preferable to the other contender, Sarah Hughes, because Mrs. Hughes was already in her sixties. Rayburn apparently retorted, “Well, if she’s too old to be a federal judge in her sixties, then I guess at 74, I’m too old to talk to you.” Kennedy apparently took the comment to heart, and when Johnson returned from Europe, Sarah Hughes became a federal judge.
“I guess I’ve been offered ten different judgeships,” Wade says, off-handedly. “I thought about some of them, but the bench never did really appeal to me. I’ve always liked this side of the courtroom.”
Wade’s love of prosecution is probably what has kept him in the job for 25 years, though he is also a very private family man, who likes to spend his off hours with his wife and five children. Those who know him well say he seems to have few close friends, and that the glad-handing required in other political circles is something he’s perhaps not capable of, and certainly not willing to do.
“When I lost that congressional race,” Wade says, “it dawned on me that I had a nice family going. And it struck me that I had important work right where I was: to make prosecution a professional type work. Sometimes I regret that I didn’t at some point just go join a law firm for a bunch of money. But sometimes I think people have more problems from having too much money than from not having enough.”
Wade seems to believe that fate has had one thing in mind for him: to become the consummate prosecutor. It’s difficult to argue with him that his office isn’t, as he puts it, “If not the best, one of the best anywhere.” After all, there are Wade’s statistics, “Henry’s almighty numbers.”
Chicago. Los Angeles, Philadelphia and Minneapolis, with from two to seven times as many felony courts as Dallas, dispose of only two to three hundred cases per court per year. Dallas disposes of 1,500 cases per court per year. The same cities have conviction rates ranging from 65 to 80 percent. Dallas maintains a 90 percent conviction rate.
But Wade’s numbers can be a bit misleading. There were 12,000 felony disposals in Dallas last year, but only 8,600 were convictions, and only 628 of those convictions came from a jury.
Another impressive statistic, the 705 trials by jury last year, is also somewhat misleading. In the last six months of 1976, 23 percent of the trials were “multiples,” in which a defendant is tried for several counts simultaneously. Such trials are legally recorded as two or four or eight trials and convictions, but they rarely take any longer than the trial of a defendant on a single count.
And the 90 percent conviction rate represents only those cases tried before a jury – only 6 percent of the cases the office actually deals with. Wade’s office’s conviction rate for all cases disposed of – by trial or otherwise – is lower, 72 percent. That figure is not as high as Los Angeles’ overall conviction rate.
Nor are Wade’s numbers quite so impressive when run against another set of figures – his budgets. Since 1966, Wade’s budget has almost quadrupled – from $675,000 to $2.4 million. During the same period, the output of his prosecutors has only a little more than doubled – from 5,000 disposals in 1966 to 12,000 last year.
But even without the padding, Wade’s bottom line is still among the best in the nation. More interesting, however, is the assumption that underlies the preoccupation with numbers: that quantity of justice is somehow directly related to the quality of justice.
If there is a single criticism of Wade’s office voiced by the city’s defense attorneys, it is that the zeal to produce more and more disposals and convictions every year has turned efficiency into mere expediency. Lawyers complain that Wade’s young prosecutors are instilled with a “killer instinct” and prodded to get convictions at any cost. One former prosecutor for Wade, now a defense attorney, says, “They will only try cases they can win. They’d rather get a conviction on an innocent man than a dismissal.” And longtime defense counsel Emmett Colvin says, “Henry has always had somewhat of the philosophy of ’Get the convictions now and let the Dallas News take care of the Court of Criminal Appeals if they reverse.’ “
It’s true that Wade’s office is highly-disciplined and highly-competitive. Wade keeps track of each prosecutor’s performance through detailed daily, weekly, and monthly reports; cases moved, convictions secured, and even total numbers of years given defendants are meticulously reviewed. Any lawyer who doesn’t measure up doesn’t last long. While Wade says that conviction rates are not the basis for succeeding in his office, he also says, “I’ve probably fired more lawyers than I’ve hired. Some young lawyers just can’t get the knack of knowing the cases they can win.” Even today, with a staff of 100 assistants, Wade personally interviews every applicant who walks into his office. He says he looks for brainpower, ability with people, and desire. “Ninety percent of a trial lawyer’s work doesn’t involve the law,” he says. “It involves knowledge of people. Picking juries, making arguments, all of it requires a good knowledge of how people think.
“And desire is important in a prosecutor. You don’t do anything well unless you want to do it well.”
The “winner take all” attitude on the seventh floor of the courthouse has produced one of the highest conviction rates in the country, but also one of the highest reversal rates. Prosecutorial errors, particularly in the area of closing arguments to the jury, have resulted in a high number of convictions overturned by the Court of Criminal Appeals. In 1975, for example, Dallas County had 44 reversals – about eight percent of all cases appealed from the county. Included in the reversals were seven murder convictions, four rape and six robbery convictions, and 14 of the reversals involved life sentences.
Jack Onion, presiding judge of the Court of Criminal Appeals, says, “Dallas tends to have more reversals on the basis of improper jury arguments than any other county.” Onion says Dallas prosecutors’ mistakes generally fall into two categories: attempts to suggest to the jury that the prosecution is aware of “other information” about the defendant that proves his guilt, and comments on the failure of the defendant to testify in his own behalf. In one instance, in 1973, an assistant district attorney told a jury, “I’m certainly not going to prosecute a man I don’t feel in my own heart is guilty” – an egregious error. And the conviction of Dallas activist Stoney Burns for interfering with police during a demonstration in 1973 was overturned by the higher court on the basis of six errors of argument made by the prosecutor. At one point, the assistant D. A. even told the jury, referring to people with lifestyles like Burns’, “I’m getting my bellyfull of them.”
Judge Onion is quick to note that the argument problem in Dallas courtrooms seems to be subsiding, and Wade blames most of the errors on “stage fright” on the part of young prosecutors. But Wade’s own 1974 “Prosecutor’s Manual” stresses the importance of the final argument, and assistant D. A. John Stauffer lists some basic themes, catch-phrases, and conclusions young prosecutors can use in their final sentencing arguments. They include such rhetoric as, “The malice of this case screams to you from the grave of the decedent, from the lips of the Medical Examiner.” Then there’s the “Adolf Hitler Likeness,” involving a comparison between the defendant and Der Fuhrer. And Stauffer implores the young prosecutors not to forget to point out “Sin involved as well as Violation of Man’s Law,” with such phrases as “I’m not a Bible thumper, but I do know that if we don’t live by the Ten Commandments, then we lose any chance for decency that man has in this world!”
Courtroom zeal is one problem with the law according to Henry Wade, but there’s a larger problem. Much larger, for 90 percent of all justice in Dallas is dispensed without a jury or a trial – in some cases, literally outside the courtroom. The process is called plea bargaining, and it is as much a part of American criminal justice as black robes and bail bonds.
Because there simply aren’t enough courts, judges, or prosecutors to handle by trial more than 10 percent of all indictments handed down, the vast majority of them are handled by negotiation between the prosecution and the defense counsel. The prosecution recommends the defendant plead guilty and suggests a sentence a bit lighter than the average jury sentence for the crime. The defense makes a counter offer of, say, half the prosecution’s recommended sentence. Depending on the strength of the case, the prosecution either holds its ground or acquiesces. If the prosecution holds its ground, the defendant has the choice of either going to trial or accepting the offer. It is not unlike bargaining at a flea market in Laredo.
Wade’s prosecutors generally pick ana choose which cases they want to try and which they want to settle by plea bargaining. Cases with good evidence for the prosecution, defendants with prior records, and unpopular crimes such as rape, child molestation, and residential burglary are the ones in which the prosecution will stick to its guns, insisting on a stiff sentence. But when the prosecution’s case looks shaky, and a jury trial could lead to an acquittal, defense attorneys claim that Wade’s prosecutors – mindful of the numbers game – employ two basic tactics to secure convictions: reduction of the punishment or the charges or “passing,” stalling the case.
For a hypothetical example of how these tactics work, let’s say a young white male has been charged with the armed robbery of a convenience store. This is usually the sort of case a prosecutor likes to get tough on: it’s one of the “big three” felonies and usually makes headlines.
But this particular case has problems. The evidence is shaky: the store owner identified the defendant in a police line-up, but he also told investigators that the lighting was poor in the store and the robber was wearing a low-brimmed hat and sunglasses. Defense lawyers love to pounce on that sort of eyewitness identification. And the defendant is young, a first offender, the kind a jury might go easy on, or even acquit. Third, the defendant’s lawyer is the energetic sort who’d love to take the case to trial and secure a not guilty or a hung jury.
The prosecutor could theoretically dismiss the case, but dismissals are reviewed carefully by Wade. Only solid factual and legal grounds are deemed legitimate reasons for not prosecuting. There is, after all, some evidence, and the case is not tainted with improper investigatory or indictment processing practices.
He could immediately reduce the charge to a “lesser related” crime, even a related misdemeanor, thereby offering the defendant a deal he couldn’t refuse. But that would be premature: no sense playing his trump cards so early. So, feeling the defense counsel out, he decides to offer the defendant a sentence roughly half the average jury sentence for armed robbery – ten years. He knows the defense attorney will balk at that, but he can pressure by “passing” or postponing the case. In most cases, the judge will not question a prosecution pass, which postpones a case for three weeks to a month – and in many instances, cases have been passed as long as a year.
Since in this instance, the defendant was unable to make bond, passing the case would leave him languishing in the county jail. Even though he proclaimed his innocence in the beginning, a few months in jail might persuade him to accept a deal, if only to get the mess over with.
Defense counsel and prosecution meet, and predictably, the defense scoffs at the ten-year recommendation. He claims he has a good shot at an acquittal, or at the minimum, a much lighter sentence than that proposed by the prosecution. The prosecutor knows his case is on thin ice, not thin enough for him to dismiss it, but thin enough for him to want to avoid a trial.
The case is passed three more times. The judge begins to get antsy, and the eyewitness begins to waffle about his original identification of the defendant. The prosecutor decides to play his trump card: he will lower his recommendation to a ten-year probated sentence. The kid has been in jail for three month; freedom, even with a felony conviction on his record, is all he cares about.
So prosecution and defense counsel meet and the deal is cut. The young man pleads guilty to armed robbery and accepts a ten-year probated sentence. The prosecutor gets a lot less than he had hoped for, but at least it goes down as a conviction. The next day, another young man is sentenced to 50 years in prison for a similar crime.
Last year, nearly 8,000 of the 12,000 cases disposed of by Wade’s office involved plea bargaining. The average sentences handed down by Dallas County juries for major felonies ranged from two to eight times as long as those given crimes who engaged in plea bargaining. Defense attorneys are generous with their examples of robbery and even murder charges that were reduced to misdemeanors. One man charged with robbery eventually paid a $150 fine and served minimal probated time for a crime a jury could have given him 20 years for. Another defense lawyer recalls a case in which his client, accused of burglary, was taken to trial even though the prosecution had a shaky case. The trial ended in a hung jury. The prosecutors came back and reduced the charge to theft under $50, a misdemeanor. The defendant paid a small fine instead of receiving 10 to 15 years in the pen.
Wade’s own numbers reflect the disparities between jury sentences and those negotiated by plea bargaining. According to the weekly reports of Wade’s prosecutors for the first half of 1976, the average sentence for murder from a jury was 29 years; on a plea it was 11 years. For robbery, the average jury sentence was 20 years, the average sentence on a plea was six years. For rape, jury sentences averaged 40 years, sentences on a plea, only five years. For burglary, juries handed down an average of 13 years, while plea bargaining brought an average two-and-a-half year sentence.
During the same period, 14 robbers were given the maximum allowed by the law, but 26 had their charges reduced to misdemeanors and 49 received probated sentences. Thirteen rapists were sentenced to life imprisonment, but the same number received either probated sentences or reduced charges. And 19 burglars were sentenced to life, but 608 received probation or had their charges reduced – 60 percent of all the burglary cases disposed of received probated sentences.
At the misdemeanor level, where county courts are hopelessly mired in a backlog of cases, the D.A.’s office likes to move cases quickly and in large numbers. You are better off copping a plea of guilty if you are arrested for driving while intoxicated in Dallas County. “Look at it practically,” one attorney says. “If it’s your first case, and you cop a plea, you can get out with, say, $150 to $200 fine and a minimal probated sentence. Throw in an attorney’s fee and court costs and whole thing will cost you about $500. If you go the trial route, it could cost you twice that in money, not to mention time and. hassle. And you can never be sure what a jury will give you.”
The D.A.’s office also likes to move misdemeanor cases quickly because of the money they can generate from fines. Henry Wade is not the sort of man to play such petty politics, but it certainly can’t hurt him to walk into budget meetings armed with the fact that his office helped to produce more than $3 million of the county’s general revenue for the next fiscal year.
Many attorneys agree that plea negotiation severely hampers the swiftness and certainty of justice – supposedly the cornerstone of the law according to Henry Wade. “Passing” slows the process down and reducing punishments or charges produces uneven and uncertain justice. And some wonder if the pressure tactics of the prosecutors force innocent men into admissions of guilt.
To his credit, Henry Wade is forthright in dealing with such questions. He admits that complaints about his prosecutors’ pressure tactics are “partially justified,” and says, “I think it’s true we probably try too many ’gut cinch’ cases.” He has also implemented two review systems in his office to check on stalled cases and reduced charges. Two years ago, a prosecutor could reduce charges at will. Today, every request for reduction of charges must pass Wade’s desk. And a daily print-out of county jail inmates and their time served is designed to deal with “passed” cases. “Anybody who’s been in there 90 days,” Wade says, “we try to give stepped-up attention.”
But Wade insists that plea bargaining is essential, given the overcrowding of the courts, and that the disparity in sentences has its own internal logic: “If a case is open and shut on an individual, it stands to reason he will receive in the upper range of punishment – either on a plea or before a jury. If the case is not open and shut, and he agrees to plead guilty, it stands to reason the punishment will be adjusted downward.” As for probated sentences, he says, “One of the greatest satisfactions I get is when we stretch our necks and get a probation for a kid and he works out. We give probation to a lot of people we could send to the pen.”
Wade probably means what he says. But many of his actions have spoken louder than his words. While he claims there is no “lynch mob” atmosphere in his office, it was his prosecutors who sought and obtained 1,000 to 5,000 year sentences for felons during the early Seventies. While he says he simply prosecutes the law to the letter, his opposition to a proposed new penal code for the state brought it to defeat in the early Sixties. (Wade and his staff made significant contributions to the revised code that was passed in 1973.) And in the early Seventies, he tried unsuccessfully to get one of his Dallas judges, Jerome Chamberlain, appointed to the Court of Criminal Appeals – a move many feel was an attempt to curtail his office’s reversal rate.
And there’s no doubt that the length of his tenure has only solidified his power. Seven of the nine felony judges in Dallas are former prosecutors with Wade’s office; three of the five county criminal judges are products of his office, too. And the legal community is laced with some 600 lawyers who learned their profession under Wade’s tutelage. Ominous as it may sound, many a defendant in Dallas has found his day in court to be a rather good na-tured reunion among three attorneys – prosecutor, defense attorney, and judge – trained under Henry Wade.
Henry Wade leans back in his huge leather chair and strokes his rugged jaw. He spits. It is something he does with remarkable grace. Not many men can spit and get away with it; it is a habit reserved for the “above reproach.”
“You could say I’m prejudiced, but I think we may have the best D.A.’s office here in the country.” He spits. “Look at the number of courts we have and the number of cases we dispose of.” His voice is firm, resonant, but somehow off-hand. This must be how he talks to a jury.
The beady eyes crease at their corners; the modest paunch strains against his belt; the rough-hewn face, still handsome at 62, appears bemused at the next question.
Is the job of a district attorney simply to secure convictions?
Pause. “No. We’re not here just to set records and to send everybody to the pen for the max. We give a lot of probations and dismiss a lot of cases too, you know.”
Has the Dallas public’s sense of law and order changed in the past 25 years?
“It’s hard to say how the public looks at law and order these days. It used to be clear. But now, I don’t know, TV has confused a lot of people. I think folks are trying to figure out what law and order is these days.
“We’re starting to get some lower pun-nishments in the last few years. Dallas is still a healthy law and order town, but people seem to be looking for alternatives to punishment these days.”
Will he run again in 1978?
“As of now, sure I will. I like it here. It keeps me young. Besides, there’s still a lot to do.”
With that, the bemused expression leaves his face, and he is back to the numbers. “Have you seen our stats for the first quarter of this year? They look better than ever . …” In mid-sentence he glances at his jury of one. Looking for something.
How Henry Wade Selects a Jury
“Any case, no matter how weak,” Henry Wade says, “can be won with the right jury.” Wade’s phenomenally high number of convictions in cases brought to trial probably supports his argument. In the preliminary examinations of prospective jurors, known to lawyers as voir dire. Wade and his men weed out “undesirables.” “I look for tough chins,” Wade says. He also looks for men or women of German descent, preferably Lutherans or Presbyterians, aged 35 to 55. The very old, he theorizes, are likely to be soft when it comes to putting someone to death; the very young, he thinks, don’t have fixed convictions. He eliminates the Irish because they’re soft-hearted and the overweight because they lack discipline.
Some prospective jurors, of course, are full of surprises. Once, Wade recalls, he had determined to strike a venireman he thought was too old. But during questioning, Wade asked if he could vote to sentence a man to electrocution for his crime. The man looked at Wade with fiery eyes: “Mr. Wade, it’s not only right, the Bible teaches it!” Wade, suppressing a smile, returned to the prosecutor’s table. His young assistant leaned over and asked, “You’re not going to take that guy, are you? He must be 70 if he’s a day.” “You bet I am,” Wade whispered back. “You wait, he’ll be our strongest juror.”
That turned out to be an understatement. When the judge asked the jury to retire and deliberate, the man stood up and shouted to the courtroom: “I know how I’m going to vote. Why can’t we just do it right here?”
What Wade and his men look for is spelled out by one of his chief prosecutors, Jon Sparling, in the office’s prosecutor’s manual – a thick and often brutally frank volume. The section on jury selection is reprinted below.
“What to look for in a juror.”
1. You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individualwho believes that Defendants are different from them in kind, rather than degree.
2. You are not looking for any member of a minority group which may subject him to oppression -they almost always empathize with the accused.
3. You are not looking for the free thinkers and flower children.
B. Observation is worthwhile.
1. Look at the panel out in the hall before they are seated. You can spot the showoffs and the liberalsby how and to whom they are talking.
2.Observe the veniremen as they walk into the courtroom.
a. You can tell almost as much about a man by how he walks, as how he talks.
b. Look for physical afflictions. These people usually sympathize with the accused.
a. Conservatively, well dressed people are generally stable and good for the State.
b. In many counties, the jury summons states that the appropriate dress is coat and tie. One who doesnot wear a coat and tie is often a non-conformist and therefore a bad State’s juror.
a. I don’t like women jurors because I can’t trust them.
b. They do, however, make the best jurors in cases involving crimes against children.
c. It is possible that their “women’s intuition” can help you if you can’t win your case with the facts.
d. Young women too often sympathize with the Defendant; old women wearing too much make-upare usually unstable, and therefore are bad State’s jurors.
e. It is impossible to keep women off your jury, but try to keep the ratio at least seven to five in favorof men.
5. Weight. Extremely overweight people, especially women and young men, indicates a lack of self-discipline and often times instability. I like the lean and hungry look.
6. Age. People over forty are more settled and more ready to believe that criminals should be punished.
7. Race. Minority races almost always empathize with the Defendant.
a. Attentive, intelligent looking veniremen that you are able to communicate with on Voir Dire willgenerally be all right.
b. Always observe how the veniremen react when being questioned by the defense attorney, andcompare it to the venireman’s reaction to you.