Article: Prosecutor in Gabe Watson Case Has Ties to Some Big Blunders

Cross Posted at Legal Schnauzer
Birmingham was the site of international legal intrigue late last week as Gabe Watson was acquitted of murder in the honeymoon drowning death of his wife, Tina Thomas Watson, on a 2003 diving excursion off the coast of Australia.
The trial received global media attention, but the outcome should not have been a surprise; the notion of prosecuting Watson on a capital murder charge in Alabama for events that took place in Australia--he served 18 months in prison there after pleading guilty to manslaughter in 2009--was dubious from the outset. But the surprise came from Jefferson County District Judge Tommy Nail, who granted a motion for acquittal before the case went to a jury.
Such motions are routinely filed but hardly ever granted in criminal cases. That Nail granted this one speaks volumes about the weakness of the prosecution's case. And that is fitting, given that Don Valeska handled the case for the Alabama Attorney General's Office. Valeska has a long history of overreaching in some instances and blowing slam-dunk cases in others. One of his blown slam dunks has had a profound impact here in the Schnauzer household.
Valeska was the prosecutor in a 1981 perjury case against Pelham, Alabama, lawyer William E. Swatek. As regular readers know, Bill Swatek is the person most responsible for the 12 years of legal misery that Mrs. Schnauzer and I have endured. Our headaches might never have come if Valeska had won a conviction against Swatek 31 years ago. But the prosecution managed to snatch defeat from the jaws of victory in that case, allowing Swatek to return to the "legal profession" and earn regular suspensions and reprimands for violations of ethical standards.
To be fair to Valeska, a conviction would not necessarily have meant the end of Swatek's legal career. A conviction on a felony charge would automatically have caused Swatek to be disbarred. But contrary to common belief, a disbarment is not permanent. Under the rules of the Alabama State Bar, Swatek might have been allowed to return to practice within five years.
A conviction, however, probably would have led to one of two outcomes: (1) Swatek would have had to find another way to make a living for at least five years and might never have returned to the law; or (2) Swatek might actually have learned a hard lesson and become an ethical lawyer upon his return.
Neither of those outcomes came to pass. Because of the acquittal, Swatek received only a 60-day suspension of his law license. And based on our own experiences, we know the "slap on the wrist" did not cause Swatek to change his ways.
How did Valeska manage to blow the perjury case against Bill Swatek in 1981? The answer to that question is unclear. But court documents and published reports show that the evidence against Swatek was overwhelming. Following is an excellent summary of the issues at hand, from a September 1981 article by Jane Aldridge in the Birmingham Post-Herald. The headline: "Hard Legal Battle Ensues Around Lawyer." (You can check out the full article at the end of this post.)

Don Valeska, an assistant attorney general, said three attorneys who had been invited by Swatek to use his private office for conferences with their client in a civil suit, discovered their conversations were being taped.

Valeska contended they took the tape, confronted Swatek with it, but that he declined to comment on it at that time. Later during investigations by the Birmingham and Alabama State Bar Associations, he denied knowing the conversations were being taped. His client, John Bailey, said he did the taping.

Valeska declared the tape itself, which he said contains statements by Swatek at the end, proves that he knew about it.

Valeska was right about that. I've checked Swatek's disciplinary file at the Alabama State Bar--it's about a foot thick, by the way--and it includes a transcript of a conversation between Swatek and Bailey that was caught on the tape. Following is a portion of that transcript: (You can check out the full transcript at the end of this post.)

William E. Swatek and Johnny Bailey on cassette tape taken by Paul G. Smith from Swatek's office on May 30, 1979:

Swatek: "Testing . . . one . . . two . . . three . . . four . . . five . . . "

Bailey: ". . . 'cause that's the one probably to use, or do you want to use that one?"

Swatek: "I'd rather use this one, 'cause you can't hear it at all, and I can stick it down under the desk and . . . "

What do we learn from this snippet:
* Bill Swatek voice tested the tape recorder--"Testing . . . one . . . two . . . three . . . "
* Bill Swatek determined which tape recorder to use after Bailey asked him about it;
* Bill Swatek determined where to place the tape recorder.
And yet, as we showed above, Swatek testified under oath before multiple bar associations that he knew nothing about the tape recording, that his client did it on his own.
The indisputable truth? Bill Swatek lied under oath during an official bar proceeding. That is perjury, and Swatek was guilty.
So how did a Jefferson County jury decide to acquit? God only knows what went on behind the scenes to cause that outcome. But under the facts and law, Bill Swatek (an "officer of the court") committed perjury and should have been disbarred.
Are we being too hard on Don Valeska about the outcomes of the Swatek case and the Gabe Watson case? Perhaps. In the Swatek matter, I see nothing in the record that indicates Valeska made any blunders that led to the acquittal. I can think of only one explanation for the outcome: Somebody in the system--judge, jury, bailiff, custodian--was tainted somehow. In the Watson matter, it was not Valeska's decision to bring the case in Alabama. That decision came from former Attorney General Troy King, and his successor, Luther Strange, allowed the prosecution to proceed.
Was Valeska acting as a "good solider" by moving forward with the clod-headed decisions of his superiors at the Alabama Attorney General's Office? The answer probably is yes.
Here, perhaps, is the take-home lesson from all of this: We can study the arc of Don Valeska's 30-year career as a prosecutor and see much of what is wrong with our "justice system." And these problems hardly are limited to Alabama. (See prosecution of Simpson, O.J.)
In 1981, Don Valeska failed to get a conviction in a case where a single sheet of paper shows the defendant was guilty beyond all doubt, not just reasonable doubt. In 2012, Don Valeska failed to get a conviction in a case that was so weak it never should have been brought--and probably was only brought because statewide officeholders wanted to score political points with the public.
Over a 31-year span, Valeska's career is bookended by two prosecutions that featured monumental screwups. That tells us that our justice system has been a sewer for a long time--and the stench is only getting stronger.
Here is a Birmingham Post-Herald article, from September 1981, about the Swatek perjury case:

Swatek Perjury Article
Swatek Perjury Transcript