Houston Criminal Defense Lawyers

divider

Archive


Harris County We Have a Brady Problem

/ 0 Comments

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.

 

Download here
brady-defender-fall-2016


separator

Prosecutorial Discipline

/ 0 Comments

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.


separator

Prosecutor Accountability?

/ 0 Comments

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.


separator