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Harris County We Have a Brady Problem

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For years, Texas and particularly Harris County, has struggled with the concept that prosecutors are to seek justice, not just convictions, and further they are to disclose favorable evidence, mitigating evidence, and even impeachment evidence. You know, the Brady stuff! Well Texas wins loses again and requires the Court of Criminal Appeals to affirm that prosecutors must disclose favorable evidence, regardless of the prosecutor’s individual belief in the evidence, and plea deals with witnesses.

Brady imposes a duty upon the prosecution to disclose impeaching, mitigating, and exculpatory evidence to the defense. And, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.[1]

In United States v. Bagley, the Supreme Court held that the duty announced in Brady required automatic disclosure of evidence that “might have been helpful in conducting the cross-examination” even when the defense did not request the disclosure of that helpful information.[2] Additionally, in Giglio, the Supreme Court held that the prosecution must disclose evidence of offers the prosecution gives to witnesses that may induce witness testimony noting that “evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness’s] credibility and the jury was entitled to know of it.”[3]

Despite Brady being the law of the land since 1963, a number of Harris County prosecutors (and former prosecutors) have come under fire for their tactics in a series of cases. In particular, courts have criticized their understanding, or lack thereof, as it relates to Brady and their obligation to turn over evidence. While not every Brady violation was the same, the consistent factor is their general misunderstanding as to what Brady actually means or encompasses. What’s particularly interesting is that each of the prosecutors in question has worked as Harris County prosecutors. None of the offending prosecutors were young or inexperienced as lawyers. Instead, they were senior prosecutors handling some of the most serious cases.

In the series of cases outlined here, prosecutors testified that Brady permits a prosecutor to determine whether favorable evidence is sufficiently worthy of belief or sufficiently certain to warrant disclosure.

The “I didn’t believe it, so I didn’t have to turn it over” Misunderstanding

The rule announced in Brady does not create an exception for a prosecutor, even acting in good faith, to fail to disclose evidence the prosecutor deems unworthy of belief. DiSimone v. Phillips, a Second Circuit appeal, best summarizes why a prosecutor’s personal judgment cannot be factored into the Brady equation: if there [are] questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel – and not of the prosecution – to exercise judgment in determining whether the defendant should make use of it. To allow otherwise would be to appoint the fox as henhouse guard.[4] As the fox cannot guard the henhouse, the general rule must require disclosure and permit the defense team to form its own conclusions regarding the strength of the evidence.

Ex parte David Temple and Kelly Siegler/Craig Goodhart

In a circumstantial case, Kelly Siegler convicted David Temple of murdering his wife. Plaguing the case was a Brady claim – the prosecution team and law enforcement did not disclose the identity of an alternative suspect until the proverbial 11th hour during trial. And, even amidst the 11th hour disclosure, the disclosure was wholly inadequate and omitted thousands of pages of police reports and other evidence.

In his 19-page findings of fact, Judge Larry Gist noted at least 36 instances of prosecutorial misconduct; he painted a picture of a prosecutor willing to win at any cost and failing to follow her duty to disclose, or timely disclose, evidence favorable to the defense. Judge Gist concluded that Siegler withheld material Brady evidence that suggested an alternative perpetrator – and not Temple – committed the murder in this case. The trial court’s findings emphasized: “[O]f enormous significance was the prosecutor’s testimony at the habeas hearing that apparently favorable evidence did not have to be disclosed if the State did not believe it was true.”

Ex parte Linda Carty and Connie Spence/Craig Goodhart

Prosecutors Connie Spence and Craig Goodhart convicted Linda Carty as a party to capital murder following the kidnapping and murder of her neighbor. While habeas relief was ultimately denied, the trial court still found Brady violations in the prosecutors’ flawed understanding of their Brady obligations.[5] Again, the Harris County prosecutors determined they did not have to disclose evidence which they deemed untrue or unreliable. In fact, Spence testified during the writ hearing, “That’s kind of why I’m a lawyer, is to make those judgments.”

In this case, prosecutors failed to disclosed witness statements that conflicted with or were inconsistent with what they represented to defense. The trial court indicated if these statement had been disclosed, defense counsel would have been able to use them for impeachment of other witnesses. (Can we say favorable impeachment evidence?) Prosecutors also failed to disclose a witness statement stating the witness did not believe Carty to be a danger to society. (Can we say mitigating evidence?) Additionally, prosecutors failed to disclose a deal with another witness – the deal being that the witness would not receive prison time if Carty were convicted and received the death penalty. (Ok, let’s just say these prosecutors made the trifecta of Brady violations: failing to disclose exculpatory, mitigating, and impeachment evidence!)

The trial court concluded: the State was operating under a misunderstanding of Brady at the time of the Carty trial; the State’s Brady obligation was determined on a ‘case by case’ basis and was resolved with a ‘judgment call’ based on ‘gut instinct;’ and at the time of the Carty trial, the Harris County District Attorney’s Office did not believe that impeachment or exculpatory evidence needed to be disclosed if the prosecutor did not find the testimony credible.”

The “it’s not a deal that has to be disclosed” Misunderstanding

The prosecution must disclose evidence of offers the prosecution gives to witnesses that may induce witness testimony. This goes to the witness’s credibility and the jury is entitled to know any potential motivating factors in the witness’s testimony favoring the state.

Rather than split hairs over what constituted an “understanding or an agreement,” in Burkhalter, the Texas Court of Criminal Appeals “[found] it unrealistic to draw a line between an outright promise not to prosecute and a very real inference not to prosecute.”[6] In Duggan, the Court reaffirmed its holding in Burkhalter: “we decided that it was judicially imprudent to attempt to distinguish express agreements between the State and a testifying accomplice from those agreements which are merely implied, suggested, insinuated or inferred.”[7] With no distinction between implied, suggested, or inferred agreements, the prosecutor is to disclose any and all agreements.

Ex parte Edward McGregor and Elizabeth Shipley Exley

Edward McGregor was tried and convicted of capital murder and sentenced to life in prison. McGregor was tried in Fort Bend County. Harris County prosecutor Elizabeth Shipley Exley served as co-counsel for the State in the Fort Bend prosecution as she was simultaneously prosecuting a separate murder case involving McGregor, but in Harris County. The Fort Bend case was considered the “stronger” case and preceded to trial first. After McGregor received an automatic life sentence in Fort Bend County, Shipley dismissed McGregor’s Harris County case.

In a highly circumstantial case, Shipley relied on three witnesses who each claimed to hear McGregor “confess” to the murder. One of the witnesses was currently serving time and wanted a recommendation for parole in exchange for her testimony. The other two witnesses were jailhouse snitches who served time with McGregor pre-trial and wanted better deals in their own pending cases.

Ultimately all three testified under the direct examination of Shipley. Each was cross-examined and each denied receiving any benefit for their testimony. However, at the habeas hearing, evidence showed that each received a benefit and each had testified falsely about such benefit.

Shipley testified there was no specific promise for a deal, only that she “could” rather than “would” notify parole or the pending court of the witnesses’ cooperation. She believed, so long as there was no specific deal, there was no obligation to disclose it. In this case, Shipley made good on her promise that she “could” help after each testified; therefore, they were not testifying under a deal. In fact, the she and the State argued that it need not disclose rewards, agreements, or understandings for consideration unless there has been a firm promise – a quid pro quo – made before the witness testified. In other words, so long as there is no “binding contract” in place prior to the testimony, Brady obligations are not triggered. Clearly, her “understanding” was at odds with Giglio and other precedent.

Ex parte Kenneth Headley and Rob Freyer

Kenneth Headley was convicted of murder based on the testimony of one eyewitness, Rebecca Broussard. Unknown to trial counsel, Broussard had been given quite the deal in exchange for her testimony. She would receive misdemeanor time-served on her two new felony charges in exchange for her testimony at the grand jury and again at trial.

Rob Freyer, former Harris County prosecutor and current Montgomery County prosecutor, testified first there was no deal; however, evidence of “the deal” was nonetheless presented and the prosecutor was impeached.

The deal was memorialized in Broussard’s grand jury testimony. At the conclusion of Broussard’s testimony, Rob Freyer stated that “we all know…that you will be given a sentence under 12.44A for two crimes that you have and…you’ll get credit for all the time that you get in.” In response to this, Rebecca Broussard replied that this was indeed her understanding. This deal was never disclosed to the defense.

After being impeached with the deal, Freyer changed his position. Instead of contending there was no deal, Freyer testified he would have “brought this out” during the direct examination of Broussard had he tried the case himself, thus there was no duty to otherwise disclose the deal.[8] Again, the prosecutor was found to have a misunderstanding of actual Brady obligations.

Taken together, these four cases illustrate that even senior prosecutors within the Harris County District Attorney’s Office fundamentally misunderstood the duty to disclose favorable evidence and demonstrate the need for further clarification of a prosecutor’s duty of disclosure. While these examples represent a small cross section of Harris County prosecutors, it does show a systemic pattern of misunderstandings related to prosecutorial obligations stemming from Brady and its progeny.

[1] Brady v. Maryland, 373 U.S. 83, 87 (1963).

[2] See United States v. Bagley, 473 U.S. 667, 678 (1985).

[3] Giglio v. United States, 405 U.S. 150, 154–155 (1972).

[4] DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (citations omitted).

[5] Trial Court’s findings and conclusions: “In considering the Brady violations cumulatively, in consideration of the evidence, in light of the entire body of evidence presented, including the trial testimony, the Court finds there is no reasonable likelihood it could have affected judgments returned by the jury and does not meet the Brady materiality standard.”

[6] Burkhalter v. State, 493 S.W.2d 214, 217 (Tex. Crim. App. 1973).

[7] Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989).

[8] In an interesting twist, a personal relationship was discovered between Freyer and the lead detective in Headley’s case. Based on that relationship, Freyer was removed from the case and another prosecutor was assigned to handle the trial.

 

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Just Because You Can, Doesn’t Mean You Should – Revisited

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One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.

 


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Prosecutorial Discipline

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disciplineFor decades, discipline for prosecutors was atypical and virtually nonexistent. Times are changing, though, it seems. First, Ken Anderson and Charles Sebesta and now line prosecutors.

In a case of first impression for disciplinary actions, Denton County prosecutor William Schultz found out the hard way that Brady has meaning beyond the courts. While the courts might impose a mistrial, vacate a sentence, or even possibly sanction a prosecutor, the State Bar Disciplinary Panel could enforce broader rules and even discipline. After withholding Brady information, the Board of Disciplinary Appeals pointed out the error of his ways (Schultz had assumed he could determine what was or was not Brady and therefore what was or was not to be turned over) and affirmed his partially probated suspension from the practice of law.

Now, former Williamson County prosecutor Mark Brunner has agreed to a fully probated suspension based on his lack of candor untruthfulness to the court. Brunner represented the State of Texas in a series of charges stemming from a bank robbery. During the prosecution, Brunner was able to reach a plea bargain with the defendant. Apparently, the plea was quite the bargain and even the court was concerned about it. Upon inquiry by the court, Brunner stated he had spoken to the victims and the bank owner and that they were satisfied with the plea agreement. Before the judge accepted the plea, he affirmatively stated, “… but for the acquiescence of this agreement by the victims in this case, I would not be going along with this agreement.”

The court, relying on Brunner’s assertion, approved the plea bargain and sentenced the defendant accordingly. However, Brunner had not spoken with the victims about the plea and none of them were aware of the plea agreement. And, Brunner did nothing to correct his false statement made to the court or relied upon by the court. Thus, the Panel concluded Brunner violated Texas Disciplinary Rule of Professional Conduct 3.03(a)(1): a lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

In his defense, Brunner offered:

When asked why he lied to the Judge, Brunner told KXAN via text message: “I answered the bar with my side of the issue. They obviously saw it otherwise. Id [sic] rather not fight it out with them in public. I had that option and I passed. So I’m still passing.”

While it is unclear whether Brunner was attempting to justify his conduct, he agreed to the discipline. He further agreed to the findings of fact which include the victims were unaware of the plea agreement. Much like defendants work plea bargains to mitigate punishment, perhaps Brunner feared a greater discipline. A fully probated suspension gives him the opportunity to continue practicing law uninterrupted. It certainly could have been worse.

All-in-all, this is a lesson in change for the prosecutorial bar. No longer are complaints simply dismissed. No longer do prosecutors get a pass for their conduct. The Bar is getting serious and it’s time to restore integrity to the prosecutor’s role.


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Good Deeds

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Criminal defense lawyer extraordinaire Mark Bennett has done his fair share of good deeds. As he can tell you, no good deed goes unpunished.

A true defender, Mark often comes to the aide and defense of his brethren in and around Harris County. He is head of the HCCLA Strike Force and responds to a “bat signal” whenever distress rears its ugly head.

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assessing the situation

Fairly recently (recent being a relative term when waiting on the State Commission on Judicial Conduct), a local judge was issued a private sanction after improperly detaining a colleague who was simply wanting to communicate with her client. Mark, and many others, rapidly appeared to assist. Mark took the lead, assessed the situation, and worked out an appropriate settlement. The judge withdrew her order of custody and released our colleague.

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researching remedies

In the aftermath, the State Commission on Judicial Conduct completed an investigation and issued a private sanction. During that investigation, the Commission took statements from those who witnessed the incident in whole or in part. (I know because I spoke to executive director, Seana Willing, who asked for my statement. I also spoke to the private investigator working for the judge’s attorney regarding the judicial complaint.) At the conclusion, the Commission determined a private sanction was appropriate.

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everyone willing to help

Fast forward: good deed done, now comes the punishment. Just last week, Mark had a case in said judge’s court. He took on this case last minute (yet another good deed) after the death of a colleague. He had a legitimate reason to request a very short continuance to cover a legal matter that could substantially affect his new client. His request was met with hadn’t he “just asked her for another day yesterday” and he “was losing credibility.” In Mark’s explanation about just taking over the case in an unforeseen tragic circumstance, the judge responded, “well, no good deed goes unpunished.”

And there you have it. Mark performed a series of good deeds only to have his credibility attacked. Retaliation for his assisting colleagues and providing a truthful statement to the Commission. Oh, and did I mention, when he wrote about all this, he learned just a little bit more about the judge and retaliation.


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(il)Legal Copycat

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In what Internet universe would a lawyer steal the words and work of another and not expect to be caught or called out? Why would a lawyer post “news” on their website by simply trolling the Internet and stealing others news? And, if a lawyer were going to do so, would they just take the easy way out and simply copy what the State Bar has already curated and pass it off as their own?

If you are a lawyer at Brown & Musslewhite in Houston, you would be lazy, plagiarize steal content, and pass it off as if some “author” in your firm wrote it.

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Jeff Musslewhite earned his law degree from The University of Baltimore School of Law. Apparently this is one school that doesn’t teach criminal law or copyright. Hell, they may not even teach ethics. Well, maybe it’s not fair to blame the school. After all, his law partner Lori Brown attended the University of Texas and didn’t learn the basics either.

Instead of creating and publishing their victories, successes, thoughts, and business plans, they have a “news” feed that does nothing but regurgitate the blog posts curated by the State Bar of Texas’ Texas Bar Today blog. The folks over at Texas Bar Today spend time reading and then passing on relevant information by providing links to various lawyers’ posts. When they do so, they identify the original writer, giving a link credit to the author, and simply send the interested reader directly to the original post.

Apparently, that’s too much work for the lawyers at B&M. They would rather just copy the work of the Texas Bar Today folks, create a fake author page, and link the readers back to themselves. By creating fake author pages, they give the appearance of the author writing or working for them. And trust me, I do not write for them, and I certainly would not work for them.

To be fair, their posts begin with “Written by JOANNE MUSICK” and “Originally published by JoAnne Musick.” Yet, when you click the link for JOANNE MUSICK, it circles right back to their site and a handy-dandy collection of everything they copied from me (which is only 2 [correction: 4, 2 as JoAnne Musick and 2 as JoAnneMusick] posts so far – but I’m not the only one they are copying – they have also copied HCCLA and HCCLA’s Reasonable Doubt).

They say imitation is flattery. Well, I’m not flattered. I find myself, much like Ruth, pissed:

When you like my blog work, I’m pleased. When you link to my site, I’m flattered. When you request a reprint, I’m delighted. When you rip off my work, even with an attribution, I get pissed!

You like my writing? Great! Let me know and I’d probably give you permission to use it. Want to curate like the Texas Bar Today folks? Great! Give proper links and I wouldn’t care. But don’t just blatantly utilize my words to enhance your google presence and seem relevant.

The interesting questions: Is this their work ethic? Do they really do real lawyer work? Or do they just copy others? Didn’t we learn in grade school that plagiarism was wrong? If they show deceit in their website, will they deceive a client? The court?

I have no desire to find the answers to these questions. I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!

Update: see what they are copying here


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Waller County Jail Report

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  The Waller County Civilian Commission report is finally out, and you can read it here:

Recommended Police and Jail Practices

We finished our review, and our report! Joined by Hon. Craig Washington, Hon. Morris Overstreet, Juan L. Guerra, Randall Kallinen, and Paul Looney, I spent countless hours trying to help the citizens of Waller County. In an epic move, Sheriff Smith invited us in and gave us unfettered access to his domain: people, places, and practices. We came and went as necessary. We interviewed whomever we wanted. We looked at whatever we chose. And, ultimately, we created 9 recommendations that have the potential to change law enforcement:

  

  • Better screening for mental health and illness
    • use of video (Skype or other technology) can provide immediate access to a physician
    • additionally, the same video equipment can provide immediate contact with a magistrate to set or review bond or even provide a personal recognizance bond to shorten jail stay
  • Police worn body cameras
    • develop policies to record and store all police interactions
  • Language and demeanor issues
    • address use of derogatory language
    • eliminate the stigma and treat others with dignity and respect
  • Counseling and fitness to serve for officers and jailers
    • mental health is just as important as weapon proficency
  • New jail facilities
  • Booking processes and information sharing
  • Digital reporting
  • Public information
  • Separation between jailing and policing

To be sure, every person in every agency can improve. We only hope our roadmap with some specific improvements can bring about greater respect for both the authorities and the citizens.

While it is sad that it took a suicide to bring change, better that change comes!


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Just Because You Can, Doesn’t Mean You Should

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Sure, a prosecutor can choose to prosecute a case, but that doesn’t always mean he or she should.

Trace Cocaine Cases

Years ago, then Harris County District Attorney Pat Lykos made the choice to decline prosecution of trace amounts of cocaine. This didn’t mean she approved or condoned cocaine possession. It didn’t mean cocaine cases were not prosecuted. It simply meant she chose to use her limited resources for more serious cases, cases involving more than just residue. Under her watch, trace amounts of cocaine meant residue left on a baggie or pipe; something that was may not even be seen, and certainly was not capable of being used, but could be tested for or seen through a microscope. While she was widely criticized by her opponent in the next election cycle for her position, it made sense and it freed up judicial resources and taxpayer money to focus on more serious crimes.

Since her defeat and the return of the prosecution of trace cases, we saw a large increase in these cases which necessitated the creation of a separate “state jail court” as we called it. This extra court had to be staffed and operated seven days a week just to handle these cases. This court had to be funded by the tax dollar. In this court, cases would languish on the docket, with defendants mostly sitting in jail unable to afford a bond. Defendants in this court were rarely offered treatment and simply moved on from the county jail to the state jail, eventually to return to Harris County and begin the cycle again.

Perhaps it is time once again to consider whether or not these cases should be prosecuted.

Interestingly, with that extra court tied up on such relatively small cases, we saw other courts becoming backlogged as well. This October, the state jail court was repurposed and became what we call “impact court.” Impact court is a trial court meant to ease the backlog of felony cases, many of which are sexual assaults, robberies, and murders. Certainly seems we should have focused resources on these cases all along and not worried so much about trace cases.

Small Marijuana Cases

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, told the Texas Tribune in June, misdemeanor courts are now a mess and are backlogged with more than 10,000 marijuana cases. To ease this logjam, the District Attorney created its First Change Intervention Program aimed at removing non-violent low-level marijuana cases from the courts.

Not only was this program designed to divert cases from the court, it also sought to easy jail overcrowding by diverting these non-violent citizens from the local jail.

The program, in terms of a participant’s completion has been largely successful; however, in terms of diversion the program has been less than stellar. Diverting only about 19% of the program’s participants from the jail and the courthouse, the program has made little impact on these valuable resources.

Perhaps it is time to rethink prosecution of these cases. The District Attorney could easily force a diversion in almost all these cases but chooses not to.

Assault / Domestic Disturbance

Here, you will notice i didn’t use the term domestic violence. Certainly, true violence whether domestic or otherwise, should not be tolerated. But here, I’m talking about disturbances that are routinely prosecuted despite the participants’ desire.

All too often we see cases where the police are called to a disturbance. Emotions are usually high as the police arrive and seek to determine what happened. Perhaps the two participants in the disturbance were upset. Perhaps they were arguing. Perhaps things got out of hand and one participant pushed the other back. Perhaps that push, meant to place distance between the two, resulted in one sustaining a red mark to her arm. That red mark is most often referred to as an injury and the other person is arrested, taken to jail, and prosecuted. Perhaps one party stretched or embellished in a moment of anger.

Now, should the “injured” party settle down and notify the prosecutor that things just got out of hand and she really doesn’t want her companion to be prosecuted, that case is immediately sent to the “family criminal law division” for follow-up and continued prosecution. In effect, the injured party is given no say in whether or not the prosecution goes forward.

Many of these incidents involve no real injury and no repeated violence. Yet, they are prosecuted.

Again, not that prosecutions of abuse should be ignored, but many of these instances do not amount to abuse. They are single instances of heated arguments.

Prosecutions, while great for business, must be taken with care and insight into the expenditure of valuable resources. Prosecution: just because you can, doesn’t mean you should.


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Prosecutor Accountability?

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Texas leads the nation in convicting innocent people. Appalling! This is not a lead to be proud of.

According to the National Registry of Exonerations, Texas led 2013 in convicting innocent people, and over the years, Texas has always remained in the top four states for convicting innocent people.

Convictions of innocent people can be linked to a variety of sources from junk “scientific” evidence to poor eyewitness identification. And while not always a contributing factor, prosecutorial misconduct certainly adds to the problem.

In New York, legislation has been proposed to create a State Commission on Prosecutorial Conduct. The idea is similar to State Commissions across the nation which deal with judicial conduct. The commission becomes an investigatory body able to review complaints against prosecutors and determine disciplinary measures where appropriate.

Prosecutors have the ability and unfettered discretion to deprive citizens of their liberty. This is a tremendous power which historically goes unchecked. Currently, prosecutors enjoy immunity for most of their actions; they cannot be successfully sued for even egregious acts of misconduct. They are shielded by appellate courts who find misconduct but excuse it as “harmless” error. They are subject to great abuses of power because there is no effective oversight.

New York is trying to change that. Perhaps it is time for Texas to take a true lead and setup our own Commission on Prosecutorial Conduct, a system of checks and balances that might hold prosecutors liable for this misdeeds when they make their own rules.

With abusive prosecutors like Ken Anderson, Charles Sebesta, and Kelly Siegler, Texas needs to step up and find accountability in a system of justice that no longer undermines public trust.

Prosecutorial abuses, like any other abuse, cost the taxpayer hundreds of thousands of dollars. Prosecutorial abuses undermine the fairness and integrity of our system of justice. Prosecutorial abuses must stop.


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49.04 + 37.09 = NOLLE; Police Video Exploits

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On July 23, 2011, C.O. was arrested for DWI by Harris County Sheriff’s Deputy Anthony Aulds. According to the report, Deputy Aulds received a call about a Chevy Silverado following an intoxicated driver westbound on Gulf Pump Road. The call slip said the Toyota had run off the road three or four times.[1]

At 02:08 hrs, Deputy Aulds caught up to the Toyota and stopped it in the 6900 block of Sheldon Road. He reported that C.O. was the driver, that she had the strong odor of an alcoholic beverage when he made contact. He also reported that when C.O. got out of the car, she stumbled and lost her balance. He subsequently administered the SFST, and placed C.O. under arrest. She was read the DIC-24 at the scene and consented to a breath test. C.O. was then taken to the Wallisville substation (HCSO District 3) and at 03:24 hrs, an Intoxilyzer test showed 0.12% BAC. Both the SFST results and the 15-minute observation time were thoroughly documented.

At first glance, it looked like a pretty good case for the State. There was a civilian witness who observed dangerous driving facts, a good report, and the proper 15-minute observation time for the breath test. But 178 days, 13 motions and 2 Brady hearings later, the case was dismissed. The Motion to Dismiss read, “witness testimony and admissions during PTRC create issues making it impossible to prove beyond a reasonable doubt.”

Initial Problems

The Harris County Sheriff’s Office employs a video system that comes on automatically when the emergency lights are turned on. The system also comes on automatically when the patrol unit exceeds 83 mph. Also, when the lights come on, the system records the 30 seconds immediately prior. This allows for recording of the traffic violation that leads to the stop.

Despite the fact that Deputy Aulds turned on his emergency lights and initiated the traffic stop at 02:08, the only video available began at 02:35 hrs and contained an abbreviated SFST which did not include the HGN test, and ended at 02:47. This was the first indication something was amiss.

The next glaring problem was when Deputy Aulds read C.O. the DIC-24. He appears to comply with the statutes until he asks her if she is willing to provide a specimen of her breath. When she inquires as to what happens if she doesn’t, Deputy Aulds deliberately removes the remote microphone from his belt and mutes it.[2] The video records an apparent animated discussion for the next two minutes before he escorts C.O. to the car. Thirty-seven minutes later, she provides a breath specimen.

When I watched the video with C.O., I asked her to tell me what was going on. She explained that Deputy Aulds told her that if she didn’t comply, she would be taken downtown and blood forcibly drawn from her. She was told that she was going to give a specimen tonight and she could do it the hard way or the easy way. Her consent had been coerced.

Coupling the video evidence with the coerced consent, I knew I could get the breath test suppressed. As C.O. looked fairly good on video and had extensive medical records to support any problems with the SFST, I thought I could get in an out on the case fairly quickly. Surely, the prosecutor would see what I had seen.

Boy was I wrong.

There’s Nothing Sinister Here

I didn’t see any reason to hide the ball. I told the prosecutor that he could see the deputy turn his microphone off, that the consent had been coerced, and that absent the breath test, he couldn’t make the case. The prosecutor noted my concerns on the front of the file and told me he would evaluate the case and get back with me.

JD pic 1

About to turn the microphone off (in his right hand). ‘M’ still displayed

When the prosecutor did get back with me, he told me, “I talked with the Deputy and he said he thinks the battery might have gone out on the microphone. There’s nothing sinister here.” (And the prosecutor has now become a witness to this untruthful statement.) I argued that it was an amazing coincidence that just when Deputy Aulds took the microphone off his belt as C.O. asked about refusing, the sound cut off. The prosecutor said he didn’t see that. Right then I knew I would have to set it for trial.

Microphone has been turned off (No ‘M’ displayed) as he allegedly obtains consent

Brady & Video

I filed a Brady/Kyles Motion specifically requesting the unredacted video along with any other Brady material. I also issued subpoenas for both the video custodian and the video.

Judge Smyth granted the Brady/Kyles Motion and on December 9th held a hearing on the record. Aaron Harsha, the custodian for video records from the patrol cars, was more than helpful. He did a thorough search of his database and recovered a second video. This previously hidden video was from 02:08 to 02:18 and contained the initial stop and contact between C.O. and Deputy Aulds. This video was clearly exculpatory as it showed C.O. had not committed a traffic violation in the deputy’s view, and had stopped in the middle of the road only because there was no shoulder and in response to the deputy’s emergency lights, and C.O. neither stumbled nor lost her balance when she got out of the car. (All of which contradicted the police report.)

JD pic 3

“Stopped in a moving lane of traffic” – RF indicates Rear & Front emergency lights on

Furthermore, Harsha produced an email from Deputy Aulds asking that ONLY the video file from 02:35 to 02:47 be archived. This is the portion with the abbreviated SFST and the DIC-24 being read.

While Harsha was on the stand, the following information came to light:

  • Deputies can turn remotely turn the camera on, but cannot turn it off.
  • They can mute the microphone at any time.
  • When the video is evidence in a criminal case, the deputy has to upload the video from the car to the server via a WiFi hotspot at various locations. The deputy then sends an email to “Fleet Operations” asking a specific video file be archived.
  • The camera can only be turned off from inside the car. If the camera is turned off, and then turned back on, the deputy has created two video files. For both to be archived, both must be noted in the email to Fleet Operations.
  • In this case, Deputy Aulds created two video files but only requested that one be preserved as evidence.
  • HCSO’s normal practice is to destroy all video after 90 days unless instructed the video is to be archived.
  • Deputies have the ability to review the video in the cars.
  • Cars two years old or newer should have the cameras.
  • Supervisor cars probably will not have the camera.

Harsha’s diligence led to a second Brady hearing which was held on December 15, 2011. In that hearing, Deputy Aulds took the stand. Deputy Aulds testified:

(After refreshing Auld’s memory with his email to Harsha)

Q:        And what time did you tell them to archive that?

A:        Approximately 02:35 hours.

Q:        And you didn’t tell them to archive at 02:09 did you?

A:        Apparently not.

Q:        Okay. Was that your decision to conceal that evidence?

A:        No.

Q:        Whose decision was it?

A:        It may have been an error.

Q:        How did you get 02:35?

A:        Because that was the time of – – the second video, I guess, was the SFST’s.

Q:        So you reviewed the video before learning the time, correct?

A:        I had to have, yes.

Q:        And you were aware the camera records the stop from the moment you turn the lights on, correct?

A:        Yes.

Q:        And yet, you didn’t tell the video custodian to archive from 02:09 did you?

A:        That’s correct.

Q:        And that was your decision?

A:        Yes.

Q:        And are you aware that is evidence in a criminal case?

A:        Yes.

Q:        And you deliberately concealed it?

A:        I didn’t deliberately, but it was concealed.

Later in the hearing…

Q:        How many DWI cases have you filed?

A:        I don’t have an exact amount.

Q:        Give me a guess.

A:        Ten, fifteen, somewhere in there.

Q:        How many of them have you edited the videos?

A:        I don’t have the ability to edit videos.

Q:        How many have you stopped the camera?

A:        I don’t remember.

Q:        So, you have done it in the past?

A:        I don’t remember if I have or haven’t.

Q:        Think hard. This is very important Deputy. Have you stopped the camera in the past?

A:        I’m sure I’ve stopped it.

Q:        So, this is not the first time you have concealed evidence in a criminal case, is it?

A:        I would say no.

Finally…

Q:        So, it wasn’t – – and you testified you reviewed the tape to determine what time the abbreviated SFST was conducted, correct?

A:        Yes.

Q:        And, so, you were well aware at the time you sent that email that there was a tape available from 02:08?

A:        Yes.

Q:        And are you also aware that tapes are destroyed after 90 days?

A:        Yes.

Q:        Did you make any effort to preserve that tape?

A:        No.

I was confident that since the case was fatally damaged the State would dismiss. When the judge asked if I had anything else, I looked at the Chief Prosecutor and asked, “You got a motion?” She said, “No.” Incredibly, they declined to dismiss the case and requested time to review additional records. It seemed they might be trying to determine if the video problem was systemic. (They weren’t concerned about that though as it turns out.)

We had our last hearing on January 17, 2012, and the prosecutor finally dismissed the case.

Lessons Learned

You cannot get on the preservation of evidence fast enough. We were lucky that Harsha was able to retrieve the video. It should have been destroyed on or about October 23, 2011. You also have to obtain the call slip from dispatch and the email from the video custodian and then compare them for time discrepancies. You also need to subpoena all the video from all the units at the scene. Sometimes officers will only submit the best video. We’ll call that the “Director’s Cut.” We have found exculpatory evidence in the other unit’s video on several occasions.

To the best of my knowledge, the District Attorney’s office has yet to provide any Brady notice(s) related to HCSO Deputy Anthony Aulds.

 

 

[1] Subsequent to the initial call, the Toyota stopped and the male switched drivers with the female (C.O.).

[2] What I have noticed on Harris County video (SO & Constable) is that when a deputy mutes the microphone, the ‘M’ icon which indicates the microphone is recording will continue to be displayed for another 30 seconds before disappearing.


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