A small measure of justice

Maybe the name Charles Sebesta rings a bell. If not, maybe the name Anthony Graves will.

Mr. Sebesta was the prosecutor who withheld evidence at Mr. Graves' murder trial over 20 years ago. Mr. Graves spent 12 years on death row as a result of Mr. Sebesta's unethical and illegal conduct.

For all of the injustices our clients face, there are moments where justice does prevail. Sometimes it's a day late and a dollar short, but it prevails nonetheless. Yesterday was one of those days.

Yesterday Charles Sebesta was disbarred by the State Bar of Texas for his actions in prosecuting Anthony Graves. While Mr. Sebesta has lost his ticket to play, nothing can make up for the years Mr. Graves spent in prison for a crime he didn't commit. Nothing can make up for the years he lost and the moments he never got to experience.

But at least Mr. Sebesta is being held accountable.

  Sebesta Disbarment

How to form a cult

So you want to create a cult, do you?

Creating an "us vs. them" attitude is one of the most effective tools in your arsenal. Take a group of people and convince them that they are standing up against the unruly mob banging on the door and they will turn their eyes inward.

Thanks to Big Jolly and Grits for Breakfast we have the presentation put up by the Grand Poobah of 1201 Franklin, District Attorney Mike Anderson, at a recent "ethics" training.

According to Mr. Anderson and Rob Kepple, of the Texas District and County Attorneys Association, those poor prosecutors are the only folks protecting us from the barbarians at the gate. They are maligned, scorned and mocked by those around them. The legislature is against them. The judges are against them. The defense attorneys are against them. The public is against them.

Add to the bunker mentality the cult-like figure of Johnny Holmes and you've got all you need to make your cult a going concern. 

One of the primary targets of Mr. Kepple's fury is the Innocence Project. In the eyes of Mr. Kepple those evil-minded ne'er-do-wells only want to make prosecutors look bad by asking to have DNA tested in case after case after case.

Mr. Kepple shows some serious man-love for former Williamson County D.A. John Bradley for his handling of the Michael Morton case. Should you not recall, Mr. Bradley blocked DNA testing on evidence found near the Morton home. In Mr. Kepple's words, Mr. Morton "got lucky."

Yes, he did get lucky. But he should never have had to go through the hell he went through. His life was torn asunder by Ken Anderson (now a judge) and Mr. Bradley. Mr. Kepple is still upset about the demise of Mr. Bradley. He's upset that such a law-and-order guy like Mr. Bradley was booted out of office by voters who were sick and tired of his tired schtick and the way he maneuvered for years to prevent DNA testing in Mr. Morton's case.

One thing that Mr. Kepple leaves unaddressed is how to prevent unethical and illegal conduct by prosecutors. In his view, Charles Sebesta, whose conduct led to an innocent man being put on death row, was just a bad apple (if even that). Prosecutors who resisted DNA testing were principled men and women standing up for what was right - the men challenging the evidence were the bad guys.

John Bradley did no wrong in the Morton case - even though we know an innocent man spent a quarter of a century behind bars for a crime that someone else committed.

And that fact doesn't even seem to play into Mr. Kebble's view of the world. He just doesn't seem to understand that if an innocent man was convicted for a crime - the real perpetrator is still out there. Instead of getting your panties in a wad because someone's getting exonerated, why not work to figure out who should have been prosecuted in the first place?

And then there's Brady. The state can always get away without disclosure by arguing that the evidence wasn't material. So does anyone at this training session urge a more liberal interpretation of Brady? Of course not. The goal isn't to disclose. The goal is to hide it away where it can never be found.

All hail the Great Grand Exalted Poobah.

Here's the full video courtesy of Big Jolly...

How long until they decide to outlaw trial by jury?

The backlash against the not guilty verdicts in the Casey Anthony case has reached Texas. State Sen. Chris Harris (R-Arlington) has let the world know that he intends to introduce a bill that would make it a felony to fail to report a missing child.

That's just what we need in the Lone Star State, another felony.

And, just so we can be reminded that bad facts made even worse laws - Sen. Harris said he will affix Caylee Anthony's name to the proposed legislation. Because we all know that that's what this knee jerk reaction to a jury verdict is all about.

Sen. Harris doesn't give a rat's ass about Caylee Anthony. He saw the opportunity to curry favor with the wing nuts in his district by slapping around the right wing's latest bogeyman -- Casey Anthony.

Don't blame Ms. Anthony for the jury's verdict, Mr. Harris. Take a closer look at the prosecutors. Did they overplay their hand by seeking the death penalty? Did they have one iota of actual physical evidence tying Ms. Anthony to the alleged crime?

While we're drafting legislation in response to a verdict in a Florida trial -- how about you draft legislation that would make it a felony for a prosecutor to withhold exculpatory evidence like a witness who recants his testimony the night before trial. We could call it the Anthony Graves Act.

We could draft legislation that would make it a felony for a prosecutor to hide forensic evidence in order to prevent the defense from running tests. We could call it the Clarence Brandley Act.

We could draft legislation that would make it a felony for prosecutors to put on scientific evidence that they know is nothing but pseudo-scientific junk. We could call it the Cameron Willingham Act.

But no. Wrongful convictions aren't on Sen. Harris' radar. He has no problem with folks being convicted as the result of prosecutorial misconduct and junk science. He has no problem with juries who convict people on less than proof beyond all reasonable doubt. He has no problem with judges who are more concerned with efficiency than justice.

Apparently Sen. Harris has a problem with juries who follow the law.

Odds and ends

Perry signs bill compensating Anthony Graves

Gov. Rick Perry signed a bill on Tuesday authorizing the state to pay Anthony Graves $1.4 million in compensation for spending 18 years in prison for a murder he did not commit. In 2006, the 5th Circuit Court of Appeals reversed Mr. Graves' conviction. As there was no finding of actual innocence, the State Comptroller refused to compensate Mr. Graves for his years behind bars.

I guess, Ms. Combs, that it's somehow Mr. Graves' fault that he was arrested, charged and convicted despite the prosecutor's knowledge that the state's star witness recanted the night before trial.

God knows the state has more important things to spend money on -- such as the more than $10,000 a month the state is spending for the house the fair-haired one is renting while the Governor's Mansion is renovated.

Is ATS blackmailing the City of Houston?

ATS, the operator of the red light cameras in Houston, has issued a letter to the city saying that all will be forgiven if the city turns the cameras back on by August 1. If the city chooses to honor the will of the voters, the city may be on the hook for up to $20 million for breach of contract.

The city attorney, David Feldman, made the odd statement that statistics indicate an increase in accidents at intersections since the cameras were turned off after last November's referendum. Of course, Mr. Feldman has never let the facts get in the way of his pronouncements.

We're about to see where Mayor Annise Parker stands when she must decide between money and the will of the populace. I'm not holding my breath.

Adding insult to injury

It's not enough that the State of Texas took 18 years away from Anthony Graves for a crime he didn't commit. Now Susan Combs, the state comptroller, has decided Texas will not reimburse Mr. Graves for the years he spent behind bars.

The state calculated that 18 years of Mr. Graves' life was worth about $1.4 million. But then Ms. Combs decided that because the order releasing Mr. Graves didn't state that he was innocent that he wasn't entitled to one red cent.

If you'll recall, Mr. Graves was convicted of capital murder in 1994 but that conviction was overturned by the US 5th Circuit Court of Appeals in 2006 on the grounds that the prosecutor failed to disclose exculpatory material to the defense and relied on perjured testimony. The state was prepared to retry Mr. Graves in 2010 but the charges were dismissed in October and Mr. Graves was ordered released.

The man responsible for robbing Mr. Graves of his liberty, Charles Sebesta, is still practicing law with very little chance the State Bar will ever disturb him.

The irony is that the current District Attorney for Burleson and Washington Counties, Bill Parham, acknowledged Mr. Graves' innocence when he and Kelly Siegler stood around soaking up praise for (finally) doing the right thing. Apparently that's not enough for Ms. Combs.

Mr. Graves can't go to Governor Goodhair for a pardon because he would have to admit he was guilty -- which we all know he isn't.

So, Bill and Kelly, if you really want to deserve the unearned praise you received, now's the time to do the right thing and petition for Mr. Graves to be compensated for the years he lost.

Pointing the finger

Perhaps Mr. Charles Sebesta should read the Texas Disciplinary Rules of Professional Conduct if he can't understand why he's being criticized for his role in the wrongful conviction of Anthony Graves.

Rule 3.09 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; 

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonableefforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

Regardless of whether Mr. Sebesta felt, or still feels, that Mr. Graves was guilty -- he was obligated to inform Mr. Graves' attorney of the fact that the only witness against Mr. Graves recanted his testimony the night before trial. He should also have disclosed the fact that he threatened to prosecute that witness' wife if he did recant.

Of course, this doesn't absolve current Washington and Burleson County District Attorney Bill Parham for his role in this cruel charade of justice. The 5th Circuit overturned Mr. Graves' conviction in 2006 and ordered a new trial. For the last four years, Mr. Graves has been incarcerated at the Burleson County Jail since he couldn't post a $1 million bond.

Mr. Parham and his team of prosecutors was well aware of Mr. Carter's recantation before trial, two weeks before his execution and in the death chamber, yet they chose to do nothing about it.

What's your excuse, Mr. Parham?

After 16 years, the state (finally) does the right thing

Anthony Graves is a free man once again. After spending 12 years on death row and the last four years in a Burleson County jail, Mr. Graves is free to wake up and go to sleep when he wants, to eat what he wants and to do what he wants.

Mr. Graves is a free man because the current Washington and Burleson County District Attorney realized it wasn't right to keep a man behind bars after the only witness against him recanted his testimony to prosecutors the night before trial. A trial that took place in 1994.

That's right. The original prosecutor, Charles Sebesta, knew before the trial ever commenced that he was suborning perjury from Robert Earl Carter, the actual killer. Two weeks before his execution in 2000, Mr. Carter signed a sworn statement saying that Mr. Graves had nothing to do with the murders. While he was strapped on the gurney in the death chamber, Mr. Carter once again stated that Mr. Graves had nothing to do with the murders.

And now, after holding Mr. Graves for four years pending a retrial, the District Attorney is ready to admit his office was wrong.

Mr. Graves was 26 when he was taken into custody and now he's 45. No amount of money can ever compensate him or his family for the 18 years that were taken away. No apology, no matter how profuse, can make up for the time that was stolen from him.

The prosecutors in this case are not to be honored as heroes. They were only doing what should have been done 16 years ago. There is no honor in that.

See also:

"Anthony Graves: Innocent and free 16 years after unfounded death sentence" Grits for Breakfast, Oct. 27, 2010

"Innocence lost" Texas Monthly, October 2010