The problem with proving the unknown

In an article for The Intercept last week, Jordan Smith hit upon the ultimate problem with prosecutorial misconduct -- proving it is damn near impossible with imperfect information.

Prosecutors have an ethical duty to see that justice is done, not to win convictions at trial. Prosecutors also have a legal duty to hand over any exculpatory evidence to the defense. The problem with Brady material is that the state has it and the defense doesn't. And given the imperfect information defense attorneys deal with in preparing for trial, if you don't know about it (or have an inkling about it), it may as well not exist.

When it was his turn to speak, [Shannon] Edmonds applauded [Stacey] Soule’s findings. “Having information like this is great,” he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often “more heat than light.” A lot of people “bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.” If you search online for “prosecutorial misconduct,” he said, you’ll find a lot of complaints and “supposed data that is rarely independently scrutinized” the way Soule had done.

As Ms. Smith points out in her article, the problem with using an analysis of Court of Criminal Appeals opinions as the basis for your thesis is that most instances of prosectutorial misconduct don't make it up the chain for a variety of reasons.

The first, and most important, is that some 95% of criminal cases end in plea deals in which the defendant waives his right to appeal in exchange for the promised sentence. In most counties in Texas, at the time of the plea, the defense attorney and the client are both required to sign a document indicating that they received all the discovery they were entitled to and and that the state is under no further obligation to provide discovery material on that case in the future.

While defense attorneys have access to the state's file in criminal prosecutions in Harris County, we have no way of knowing what's not in the file. In some cases potentially exculpatory evidence is "covered" under the work product privilege. In others, it's simply not disclosed because the prosecutor doesn't deem it to be exculpatory.

In general, once the light has been shown on a systemic issue - either by the press or at trial - that information is conveyed to defense attorneys who are advised to contact their clients and proceed as they choose.

The problem is, the state knew about the issue while the case was pending but chose to say nothing and to disclose nothing so they didn't lose their edge.

Ultimately the only way to bring these matters to light may be taking every case to trial and shining a light on the ways in which prosecutors, police and crime labs gather and process evidence. But that "solution" is certainly a non-starter because many defendants don't want to chance a longer or more severe sentence at trial. Some defendants decide to plead because the financial burden of fighting a case is too much for them. Some give up the ghost because the state has allowed courts to pile so many pre-trial bond conditions on them that they'd rather get credit for it by pleading to probation.

If there is no one in the forest, does the falling tree make a sound? Likewise, has the law been violated if the state chooses not to disclose exculpatory evidence when no one else knows its exists? On the one hand, the answer is clearly yes. But, on the other hand, if you can't prove it existed what are you going to do about it?

Bargaining with the devil

Corey Williams is a free man.

He spent 20 years in the Angola prison in Louisiana for a murder he didn't commit. Back in 1998, Mr. Williams was a developmentally challenged 16-year-old when Jarvis Griffin, a pizza delivery man, was shot and killed while delivering a pizza to a home in Shreveport.

Witnesses reported seeing some older men taking money and pizzas from Mr. Griffin. Those same witnesses said that Mr. Williams left the house empty-handed. Fingerprints on the murder weapon belonged to someone else and blood was found on the clothing of another suspect. There was no physical evidence linking Mr. Williams to the crime.

He was found by police hiding under a sheet at his grandmother's house. He denied killing Mr. Griffin but later, after hours of interrogation, changed his story. His confession lacked corroborating details.

Mr. Williams was convicted of the murder and sentenced to die. That death sentence was overturned by a district judge in 2004 because of Mr. Williams' mental disabilities.

Meanwhile, prosecutors had recordings of witness statements in which police indicated they believed that Mr. Williams was being framed for the murder. Dale Cox, the former Caddo Parish district attorney, argued in 2015 that he didn't have to turn over the recordings because defense attorneys hadn't proven that the recordings were exculpatory.

In the end, 44 former prosecutors and Justice Department officials signed a brief in support of Mr. Williams' claims before the US Supreme Court.

The appeal will never be heard because last week Mr. Williams agreed to plead guilty to manslaughter and obstruction of justice. The murder conviction was vacated and he was sentenced to time served.

On the one hand, we should be happy because an innocent man is now free; on the other hand, he shouldn't have had to agree to a plea deal to gain his freedom. Prosecutors played fast and loose with the rules and didn't hand over evidence that should have been disclosed prior to trial. Of course Mr. Williams couldn't prove anything on the recordings was exculpatory because he hadn't been allowed to listen to the recordings.

This is the problem with Brady material. The evidence is in the possession of the folks who are trying to convict the accused. The defense rarely knows what the state has in its possession if prosecutors decline to disclose it. As an aside, in Harris County (and the surrounding counties), prosecutors have open file policies of varying degrees - though it doesn't stop some evidence from being withheld.

Mr. Williams was forced to plead guilty because of the fear that his appeal would be denied. He was forced to plead in order to gain his freedom so that prosecutors could still point to a conviction in his case and so that the state wouldn't have to compensate him for the time he was locked up.

That was wrong. Once the whole story emerged in this case, the District Attorney should have asked a judge to vacate the conviction and order Mr. Williams freed. But even when the facts and law are on the side of the defendant, the state has the power.

Consequences, what consequences?

Alfred Brown spent a decade of his life on death row in Texas before he was exonerated by phone records found in a detective's garage in 2013. What makes this tale more chilling is the fact that the prosecutor who sought the death penalty in Mr. Brown's 2005 trial for the murder of Houston Police Officer Charles Clark and store clerk Alfredia Jones was made aware of the phone records prior to trial.

The prosecutor, Dan Rizzo, is now retired.

In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.

After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.

The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.

The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.

Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.

The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.

Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.

Well, let's look at that for a bit, shall we?

According to Section 19.02(b) of the Texas Penal Code, the murder statute:

(b) A person commits an offense if he:(1) intentionally or knowingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;  or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

The death certificate of an executed inmate lists homicide as the manner of death. That is murder.

Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."

According to Section 15.01 of the Texas Penal Code:

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

We already know that Mr. Rizzo wanted Alfred Brown to be condemned to die. He tried the case and he asked the jury to return a death sentence. He also failed to turn over the phone records to the defense prior to trial despite having been told of the existence of those records. His failure to produce the records led to the guilty verdict as there was no corroboration of Mr. Brown's alibi without the records.

As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.

Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...

Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg:

   Rizzo-3-12-18 by Paul B. Kennedy on Scribd

What will Cliven Bundy do next?

On December 23, I wrote about the dismissal of the cases against Cliven Bundy and his band of Angry White Men with Guns.

Today US District Court Judge Gloria Navarro decided that the US Government violated Brady to such an extent that the only cure was for a dismissal with prejudice.

And so it goes, Cliven Bundy and his band of unmerry men have, once again, gotten away with their criminal acts - this time thanks to federal prosecutors screwing the pooch and withholding potentially exculpatory material from the defense.

There is no question that Bundy and his boys occupied federal lands, with weapons, despite orders to vacate the premises. There is also no question that this is part of an effort among wingnuts to privatize federal lands out west for the benefit of a few.

There is also no question that what happened in this case happens in criminal cases all across this country every day of the week. This one turned out differently because a disenchanted federal witness testified about the evidence that was withheld. And that's not what ordinarily happens.

As defense attorneys we have no idea what evidence the government has generated. We only have access to that evidence prosecutors turn over to us and that evidence that we subpoena because we have a feeling that something might not be right.

The problem is that if no one turns it over and the defense doesn't know it exists, there's no consequence for withholding it. And with the sheer number of cases that end up with a plea agreement because the defendant can't post bail or otherwise get out of jail after being arrested, there isn't time to dig deep enough to find out what hasn't been produced.

While today's decision is a win for the rule of law, it is also further evidence that we have a two-tiered justice system - one for those who can afford it and another for those who can't.

The Bundys fell in the former, most of our clients fall in the latter.

You couldn't screw it up this bad if you tried (or could you?)

I have very mixed emotions about the dumpster fire that has become the Cliven Bundy trial. This week, US District Judge Gloria Navarro declared a mistrial after finding that government prosecutors had withheld potentially exculpatory evidence from defense attorneys. She will decide in February whether the government's case should be dismissed with prejudice.

Mr. Bundy and his band of merry men became famous when they resisted the government's effort to collect grazing fees back in 2014. For more than 20 years Mr. Bundy had been grazing his cattle on federal land in Nevada without paying grazing fees.

After an armed stand-off (sound familiar), government agents left with their tails between their legs and no money in their wallets. Los federales made no other attempts to collect the money owed to taxpayers.

Emboldened by his success, Mr. Bundy and his band of merrier men decided that Oregon would be the next front in his battle against the government. Mr. Bundy's group carried out a 41-day long armed occupation of the Malheur National Wildlife Refuge in support of Oregon ranchers sentenced to jail for setting fires on federal lands.

Now, before I go any further, it's time for a little digression. During the occupation, federal agents treated the Bundys with kid gloves. I shudder to think what the government's reaction would have been had the occupiers been black or brown or any color other than white.

Despite video evidence, e-mail messages, photos and Facebook posts, the government's case has crumbled because prosecutors failed to turn over surveillance footage, threat assessments and FBI reports - after first denying they ever existed. Even more disturbing is the admission (again, after initial denials) that prosecutors had recordings of another defendant's jailhouse conversations with his attorney.

Of course, for those of who work in the criminal (in)justice system, none of these revelations are all that surprising. What's generally more surprising is them coming to light.

As much as I hate to see armed wingnuts like Cliven Bundy and his bank of merry men running around free, I cannot stand by and try to justify the government's failure to disclose potentially exculpatory evidence to the defense. And that paints it just a little too sterile as prosecutors lied and misrepresented the truth to the Court. That's not a failure to disclose, that's a freaking ethics violation.

I don't think that Judge Navarro has any other choice but to dismiss the case outright next year due to prosecutorial misconduct.

The only question I'm left with is whether or not the government torpedoed its own case because it didn't want to make martyrs of the Bundys.

Stepping in it

Oh what a mess Harris County DA Devon Anderson has found herself in. As has been reported in local media outlets, over the last nine years some 21,000 pieces of evidence were destroyed in Harris County Precinct 4. All of the evidence was supposedly destroyed by one deputy - Christopher Hess - who has since been fired.

But somehow none of it came to light until local defense attorneys Emily DeToto and Paul Morgan found out when one of their clients was being offered a 25 year sentence on a dope case last month.

Strangely enough, Ms. Anderson announced at a press conference that her office had been aware of the destroyed evidence since February but chose not to say a word about it - all the while offering lengthy prison sentences in a cases in which there was no evidence.

Of course Constable Mark Herman claims that the entire problem has been resolved and that everything in Precinct 4 is now hunky-dory (which would be a first). If the story needs any more spicing up, the former constable, Ron Hickman, was appointed Sheriff following the resignation of Adrian Garcia.

But aside from the stinking mess that is (and has been) Precinct 4, why didn't Ms. Anderson's office inform defense attorneys about the problem when she found out about it? The requirements of Brady would seem to scream out that her office should have notified any defense attorney representing a client who was arrested in Precinct 4, that there was a problem with evidence storage. Her underlings damn sure shouldn't have been offering plea deals to defendants when they knew there was no evidence to back up the case.

Apparently we can require prosecutors to attend all the ethics classes we want and it won't change the culture of the office. Ms. Anderson wants us all to believe that all is well with the world and that her office is seeing that justice is done. Really?

There is no justification for Ms. Anderson's actions (or lack thereof). There is no excuse for sitting on this matter for six months. If Ms. DeToto and Mr. Morgan hadn't found out when they did, when would we have found out? And what other nasty little scandals are lurking in the nooks and crannies of the 6th Floor of the Harris County Criminal (In)Justice Center?

If Ms. Anderson can't be trusted to notify the defense bar of the wholesale destruction of evidence, how can we trust her office to investigate the matter? If we really want to find out what happened, who did it and how long it went on, then we need to have an outside agency do the investigating.

Ms. Anderson and her minions have shown they cannot be trusted.

Stop me if you've heard this before...

It seems that no matter how hard it tries, the Houston Police Department Crime Lab just can't keep itself out of the news. Peter Lentz worked as an analyst at the crime lab from 2012 until earlier this year when he resigned - after he was caught lying, using improper procedures and tampering with a government document.

Oops.

In every case in which an analyst testifies - from DWI cases to capital murder cases - the testimony reveals that the crime lab was certified by ASCLD and by the Texas Department of Public Safety. This testimony is supposed to convince jurors that the test results are accurate. Yet somehow the parade of problems continues.

Mr. Lentz worked on 185 cases, including 51 capital murder cases. The Harris County District Attorney's Office did send out a letter notifying defense attorneys about the issue after it arose as they should. In many of these cases there is still material that can be retested. However, the fact that Mr. Lentz was able to do what he did as long as he did it should raise serious questions about oversight at the HPD Crime Lab.

If the lab can pass its annual audits year after year but we still have problems with analysts making shit up, then there is something wrong with the audit process. Too much of the audit consists of a supervisor reviewing a file and signing off on the test results if all the paperwork is in order. There is no random retesting of material.

The list of past sins at the crime lab is well known in criminal defense circles. The lab has undergone numerous re-openings, re-toolings and re-marketing campaigns over the years. Nothing works. The culture at the crime lab is still - and seemingly always will be - to produce the best possible evidence for the government.

Because the mission of the crime lab is to assist the government in prosecuting cases, lab managers will never probe into the actual testing of material. What purpose would that serve? So long as the test results that come from 1201 Travis help prosecutors obtain convictions there is no reason for managers to do more oversight into the lab's operations.

While the misdeeds of Mr. Lentz only directly affect those cases on which he worked, the stench should cover each and every test result that comes from the HPD Crime Lab. When a culture is so ingrained in an institution that we keep coming across these stories year after year, that culture affects everyone who works in the crime lab.

As a postscript to the story, the Harris County District Attorney's Office presented evidence of Mr. Lentz' misdeeds to a grand jury that declined to indict the former analyst. My question is why was Devon Anderson's office allowed to present that case to the grand jury when almost every test conducted in the HPD Crime Lab (if not every test) is produced for the DA's Office?

There is a clear conflict of interest in allowing the Harris County DA's Office to investigate this matter. Ms. Anderson's office has an incentive not to prosecute Mr. Lentz as such a prosecution could put into question every test conducted at the HPD Crime Lab. By sweeping the matter under the rug, the DA's Office can pretend that Mr. Lentz was a "lone wolf" and that his actions aren't an indictment on the entire crime lab.

We'll let you know if it's something we think you should know about

Exactly how does a lab analyst, at an accredited lab, record the wrong name on at least 350 lab samples? How does that same lab analyst lose or destroy another analyst's worksheet? More importantly, what does that say about the quality of the work in the lab?

Those are the questions raised by a scandal involving Integrated Forensic Laboratories, LLC, a Bedford, Texas, lab that Bexar County contracted with to perform blood testing in DWI cases. Justin McShane, a Pennsylvania attorney and forensic science savant, posted an article from the San Antonio Express-News detailing the breadth of the scandal. A little anonymous bird pointed me to Mr. McShane's posting.

Cherrie Lemon was the analyst who lost her job on May 16 and whose work has now raised questions about the validity of tests performed on hundreds of DWI cases. The biggest questions are how she kept her job after the massive mislabeling effort and why the Bexar County DA's Office didn't notify defense attorneys of the problems at the lab until after news broke of her firing.

In an e-mail to Bexar County prosecutors, Dr. Nate Stevens, Ph.D., the lab director at IFL, pointed out that defense attorneys didn't need to know anything about their internal investigation unless any issues arose after the audit.

Now not to be too persnickety here, but letting the state and its agents decide when defense counsel should and shouldn't be notified of potential evidential issues is a bit like letting the fox guard the hen house. The question isn't whether an audit revealed "issues" with any of the tests, the question is whether or not the revelations cast doubt upon the reliability of the test results.

The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified. The court should then determine whether the problem is serious enough to compromise a test result (or to present the appearance that a test has been compromised).

For anyone who still harbors illusions that our modern day crime labs are as sophisticated and well-run as the labs on CSI and other forensic science procedurals, let this be a wake-up call. The purpose of a crime lab isn't to discover the truth - it is to produce useful evidence for the prosecution. This mission creates a culture where problems are to be swept under the rug lest those pesky defense attorneys find out what's going on behind closed doors. It's only when there are clear cases of misconduct that any of us find out just what happened.

When a hand-held pipette in the HPD Crime Lab was found to be out of tolerance no one in the defense bar was notified. You only found out if you retained a certain expert who found the problem in the reams of paperwork turned over during discover. I only found out when I was handed a sheaf of papers five minutes before we were to resume trial.

In my case the lab analyst took the stand and told the jury, with a straight face, that it didn't matter if the pipette was out of tolerance. Forget about standard operating procedures - so what if we don't know what amount of blood or other substances were placed in the tube?

Any lab analyst worth his or her salt would be honest enough to admit that any test conducted using instruments that were out of tolerance would be compromised and should be re-run. Maybe it wouldn't make any difference - but what if it did?

This crap finds its way into our trials because we don't do a good enough job of fighting to keep junk science out. It also happens because criminal judges tend to disregard their roles as gatekeepers of scientific evidence. It would be funny, if it weren't so tragic, that judges in civil trials - where the only thing at stake is money - do a vastly superior job of keeping junk science out of the courtroom.

But hey, we're talking about criminal defendants here. We all know they did something wrong - even if it wasn't what they were charged with, don't we?

Hear my tiny violin

The Michael Morton Act was passed in response to the wrongful conviction of Michael Morton. Mr. Morton, as has been noted here before, sat in prison for 25 years until his conviction was overturned. He was convicted in large part to prosecutorial misconduct.

Of course Mr. Morton wasn't the first person in Texas who sat in prison for decades as the result of a miscarriage of justice. He became the poster boy for wrongful convictions in large measure because he was white, he was from the suburbs and he was in a management position at the time of his arrest for murdering his wife.

The Michael Morton Act requires prosecutors to turn over all exculpatory evidence to the defense whenever it becomes available. It's the first time that Texas has put teeth into the Supreme Court's proclamation in Brady v. Maryland.

Civil litigation in Texas has long been governed by the Texas Rules of Civil Procedure that mandate complete discovery with the view that if all the facts are made known to all sides, there is a better chance the parties can come to an understanding without the need for trial.

In criminal cases, on the other hand, the defense was long saddled with the burden of not having access to the state's evidence. Forget about all that presumption of innocence crap and that garbage about proof beyond a reasonable doubt. Criminal trial work in most of the state was a glorious game of hide the sausage. Unlike the civil side of the ledger - in which folks were just arguing about money - the state was allowed a monopoly on the evidence.

We didn't allow trial by ambush in the civil courts but it was open season on defendants in the criminal courts.

Now that the state legislature has told prosecutors around the state evidence must be disclosed to the defense, district attorneys around the state have been squawking about how much it will cost the government to provide material to the defense. I, for one, don't give a flying fuck whether district attorneys around the state are wringing their hands about the cost of producing material. The government is the party that's trying to restrict the liberty of its citizenry.

And if we're interested in protecting the due process rights of those accused of criminal acts, then full disclosure on the part of the state is the only way to go. Full disclosure may very well be more expensive that not disclosing, but it can also lead to defense attorneys recommending that their clients enter into plea agreements based on the available evidence. Full disclosure will also reduce the number of appeals and writs based on prosecutorial misconduct. And I think we can all agree that's not a bad thing.

If the cost of producing material is higher than a district attorney thinks he or she can justify then maybe local prosecutors need to think twice about the cases they are filing. Maybe the cost of complying with the Michael Morton Act should be a factor to be considered in whether or not to accept the filing of charges in any given case.

Another innocent man freed from prison

How many more stories are we going to have to read about innocent men and women being released from prison after serving two decades or more because prosecutors failed to disclose exculpatory evidence at trial? How many more lives are we going to allow to be ruined because prosecutors are more interested in winning a case than they are in getting it right? And I'm not just talking about the wasted years of the innocent man - I'm talking about the enormous cost to his family.

Jonathan Fleming was convicted of the 1989 murder of Darryl Rush in Brooklyn. For more than two decades he missed every birthday, wedding, graduation and funeral for his family and friends. Those are 24 years of wasted memories that he can never get back.

When Mr. Fleming was accused of the murder he told the police he was in Florida. A review of the file revealed that the police had a hotel receipt from the day of the shooting and a note from the Orlando Police Department that hotel employees remembered seeing him that day.

Those items were never turned over to Mr. Fleming's attorneys. Despite his protestations, Mr. Fleming was convicted.

Even after a witness admitted to lying on the stand after the conviction, prosecutors continued to defend the conviction.

Mr. Fleming's conviction was overturned as the result of a review of questionable convictions from the Kings County District Attorney's Office. But for that investigation by the Conviction Review Unit, Mr. Fleming might still be behind bars today.

Mr. Fleming has announced that he will sue everyone he can for the injustice he was forced to endure for almost a quarter-century. But all the money in the world can never give him back the thing he lost - time.

As for the prosecutors who tried the case, the only appropriate remedy is disbarment. What they did was so reprehensible there is a special ring in Dante's hell for them. To the ADAs who handled Mr. Fleming's case, he was nothing but a case number. I'm sure they tossed out numbers to his attorneys like they were candy. What the hell, it's not like it would affect them one little bit. Close out one case and pick up the next one.

They betrayed their oath of office. They betrayed their oath to uphold the law and the constitution. They betrayed their profession. They betrayed themselves. They are scum and they don't deserve to call themselves lawyers anymore. Until we decide to put some teeth into Brady and our criminal discovery statutes, this will continue to happen. Until courts decide to impose sanctions on prosecutors who play hide-the-sausage with exculpatory evidence, this will continue to happen.

The other day Scott Greenfield wrote about a judge who did just that when he found out that a prosecutor withheld exculpatory evidence. Of course his sanction - banning the prosecutor from his courtroom - wasn't nearly harsh enough.

And still they went on practicing law like nothing happened. It didn't bother them that an innocent man was sitting in prison because they didn't hand over exculpatory evidence to the defense. It's not like they even gave a fuck that the evidence didn't support their theory of the case.

And let's take a wild guess at what kind of testimony it was that led to Mr. Fleming's wrongful conviction -- could it possibly have been eyewitness testimony? Isn't that another link with most of the publicized exoneration cases? In many cases it was the DNA evidence that proved innocence after eyewitness testimony put them behind bars.

While we should take pleasure in Mr. Fleming's exoneration, we can never forget that this incident serves as yet another indictment of our criminal (in)justice system.

Dropping the other shoe

Michael Morton spent 25 years in prison for a crime he didn't commit. Once evidence surfaced that Mr. Morton might just have been innocent of the murder of his wife, the Williamson County District Attorney, John Bradley, fought tooth and nail to prevent the evidence from being tested.

The DA at the time of Mr. Morton's trial, Ken Anderson, was now a state district court judge in Williamson County and the office was circling the wagons to cover up the sins of one of their own.

Eventually the evidence was tested - and it exonerated Mr. Morton.

Twenty-five years is a long time to sit in prison - especially if you were wrongly convicted. Even worse if that conviction were the result of prosecutorial misconduct. There is nothing that can make up for that time. Mr. Morton will never have the opportunity to see his son grow up. An apology from the court and a check from the state can't cover the debt Mr. Morton is owed.

During the investigation of the murder of Christine Morton, investigators interviewed Mr. Morton's three-year-old son who told police that his father wasn't at home when his mother was killed. There were also police reports about a suspicious van in the area and a man who wandered up behind the Morton's house on more than one occasion.

Prosecutors failed to disclose that information to the defense before or during trial. And, of course, the jury never heard a word about any of it. Making it worse, Judge. Anderson then lied to the judge presiding over Mr. Morton's trial when asked about the evidence.

But now the other shoe has dropped. On Friday, State District Judge Louis Sturns, presiding over a court of inquiry, found that Judge Anderson broke two laws in his handling of the matter and that he committed criminal contempt when he lied to the court. Then Judge Sturns ordered Judge Anderson arrested.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison. 

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Let that sink in for a moment.

First the judge tells a fellow judge that he broke the law while handling the Morton case, then he issues an arrest order for a sitting judge. That just doesn't happen in Texas.

Judge Anderson was taken into custody, posted bond and was released that evening. But the sting of Judge Sturns' words will never be erased. A sitting state district judge broke the law and lied to a judge all in the name of trying to win a case against a man he knew - or should have known - was innocent of the charge.

Judge Anderson challenged the ruling and informed Judge Sturns that he plans to appeal on the grounds that the court of inquiry exceeded the scope of its authority and that the statute of limitations had already run. He also claimed that the evidence didn't support Judge Sturns' findings.

It is more than a little interesting to note that Judge Anderson has never denied hiding the evidence. Neither he nor John Bradley found anything wrong with not disclosing exculpatory evidence to Mr. Morton's attorneys

While the Michael Morton Act expanding the items the state must turn over to the defense prior to trial is a step in the right direction, the actions of Judge Sturns are the equivalent of turning the entire truck around. A ruling that a piece of evidence is inadmissible is one thing - a ruling that a prosecutor's actions constituted a criminal act is something entirely different.

If we want to make certain that no one else has to go through what Michael Morton went through, we have to start holding prosecutors accountable for their actions. This isn't a game we play, what goes in those courtrooms affect people's lives in profound ways. Judge Anderson's actions not only robbed Mr. Morton of 25 years, they also robbed his loved ones of those 25 years.

I just wonder if Judge Anderson has enough honor to step down from the bench he has disgraced.

Making a bad bill even worse

Never one to let a good opportunity to put the screws to the defense, State Sen. Joan Huffman (R-Houston) has proposed an amendment to State Sen. Rodney Ellis' largely unnecessary reciprocal discovery bill. And, in the spirit of George Orwell, the bill has been named the Michael Morton Act.

For those of y'all scoring at home, you already know that once you put a person's name on a bill nothing good will come of it. And that is now doubly the case thanks to Sen. Huffman.

The amendment would allow a judge to impose a protective order on information turned over to the defense by the state that would prevent defense counsel from disclosing any of the items covered under the order to any third party, including other attorneys.

Courtesy of Grits for Breakfast, here is Sen. Huffman's amendment:

On a showing of good cause specific to the case, the court may enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred or that the attorney representing the defendant is prohibited from distributing to a third party offense reports or witness statements received from the state. For purposes of this subsection, "good cause" includes the probable loss, destruction, or fabrication of evidence, the probable compromise of an investigation by law enforcement, or evidence of intimidation, a threat of harm, or danger to the safety of the victim or witness. In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of the document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but, notwithstanding Subsection (a), is not required to allow electronic duplication of the document, item, or information.

Now let's stop and think about this for a second. Should this bill pass it means that a judge could prevent a defense attorney from disclosing information about procedural violations in a crime lab, intimidation by law enforcement, a lack of honesty from law enforcement, exculpatory evidence and prosecutorial misconduct, just to name a few.

Just as Mr. Morton's conviction had nothing to do with his attorneys disclosing any information to the state, this sordid episode in Williamson County had nothing to do with his attorneys disclosing any information about the investigation into the murder. In fact, under this bill, his attorneys could have faced sanctions for disclosing information to other attorneys.

As I have stated on multiple occasions, wrongful convictions in this state don't happen because the defense didn't turn something over to the state - wrongful convictions happen because the state hides, fails to disclose or destroys evidence that might be exculpatory. Wrongful convictions happen because judges, the supposed gatekeepers of the criminal (in)justice system have no qualms about allowing in junk science in criminal trials if it benefits the state.

If we really want to put an end to wrongful convictions then we need to put some teeth in Brady. Prosecutors found to have violated Brady need to be sanctioned in some manner that will not only get their attention but will also get the attention of other prosecutors around the state. We as defense attorneys need to do a better job fighting against the proliferation of junk science in the courtroom. We need to challenge the purveyors of pseudo-science at every opportunity. Judges need to apply the same standards to scientific and expert testimony in criminal cases as they do in civil cases. I'm sure we can agree that a person's freedom and liberty is more important to us than an insurance company's bank account.

Sen. Huffman's amendment makes a bad bill even worse and gives us another reason to work to defeat. it. The only silver lining is that it exposes this entire scheme of reciprocal discovery for what it is - a scam.

Survey says...

Oh, are there ever some Texas prosecutors with some seriously ruffled feathers after Judge Barbara Hervey of the Texas Court of Criminal Appeals sent out a survey on dealing with Brady issues to prosecutors around the state.

The survey posed a series of hypotheticals and asked prosecutors how they would handle the situation. The correct answer is quite clear when you read the scenario, but many prosecutors, particularly Lee Hon (the Polk County District Attorney) were quite concerned about the survey.

Well of course prosecutors are concerned about the questions. If they did the right thing when confronted with the scenario presented there would be no case to prosecute. And, with no case to prosecute, there would be no big sentence imposed and no nice quotes in the local newspaper. Hell, if the prosecutor worked for Pat Lykos in Harris County there might be no bowling on Friday afternoon.

Here are the hypotheticals from the survey.

Scenario 1: Police converse with murder suspect 30 times, recording each conversation. The defendant confesses to the crime, and the entire case is built around that confession. Police do not reveal tapes despite the defense that the suspect was coerced. A few days after conviction, in a casual meeting with the arresting police agency, you are asked if your office "needs" the tapes. What do you do? 

Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense? 

Scenario 3: A complainant dies before trial. The State's case would heavily rely on the complainant's testimony. Do you inform the defense? Discuss. 

Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense? 

Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss.

Seriously, you mean a prosecutor might need to listen to tapes that might provide evidence that a confession was coerced? Of course the bigger question is why the tapes weren't produced to the defense prior to trial.

Scenario 3 shows up in various shades every day in courthouses around the country. Most commonly in domestic violence cases when the complaining witness either isn't talking to prosecutors or has vanished. Prosecutors just love playing the bluffing game. I once had a prosecutor offer my client time served on a DWI with a breath test of .15. When my client said no thanks, the prosecutor dismissed the case because the arresting officer couldn't be bothered to show up in court that morning.

And doesn't Scenario 5 look just a little bit familiar?

Troubling questions indeed.

Giving Brady some teeth

So here's the dirty little secret - the Brady decision isn't worth the paper it's printed on. Sure, it sounds great. The prosecution must turn over any evidence that might tend to negate the accused's guilt or mitigate the offense. Only one problem - who's going to police it?

Keep in mind that we're talking about evidence in the possession of the prosecutor. If you already know about it, it isn't Brady material. It only falls under Brady if you don't know it exists.

But, if you don't know it exists, how can you be certain the prosecutor is providing it to you? How do you know the prosecutor doesn't just ignore it and move on to the next witness? And, even more important, how do you know whether this material you don't know exists, is material to the case?

Recently we have seen special prosecutor Henry Schuelke castigate federal prosecutors for their role in not turning over exculpatory evidence to former U.S. Senator Ted Stevens' attorneys in the run-up t his trial. We've also seen the Chief Judge of the Texas Supreme Court (the highest civil court in the state) call for an inquiry into whether a former Williamson County DA (now a state district judge) violated the law by failing to turn over exculpatory evidence in a 1987 case.

Nancy Gertner and Barry Scheck have a proposal to put more pressure on prosecutors to follow Brady:

The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible. 

Whether issuing such an order will resolve the issue is a question in need of an answer. First, we will continue to have the very real problem that there is no way to know what material the prosecutor has at his disposal unless the prosecutor (or a whistleblower) is willing to hand it over. Second, who makes the determination whether the evidence is material? If the prosecutor doesn't think the evidence is material - you'll never see it. Third, how would the order be enforced? Most cases involving Brady violations are old. The nature of the violations only come to be known years after the fact when someone is sifting through old files.

Rare would be the case in which a Brady violation surfaced at trial. The only way defense counsel could point out the violation was to produce the exculpatory evidence - and if the defense is in possession of the exculpatory evidence, Brady doesn't apply.

So, while Ms. Gertner and Mr. Scheck's proposal is a good idea and a step in the right direction, it is by no means a solution to the conundrum that is Brady.

Just another slap on the wrist

In Brady v. Maryland, 373 US 83, 87 (1963), the US Supreme Court held that "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."

There is no requirement that a judge instruct the prosecutor to turn over the evidence. A simple request by the accused is all it takes to trigger Brady. The accused doesn't even need to know the specifics of any of the evidence - once he requests it, the state is under a continuing duty to provide any evidence that might conceivably be exculpatory.

Of course, unless you know exactly what you're looking for, you'll never know if you received it. You can speculate all you want, but if no one ever mentions the existence of the evidence, there's not a damn thing you can do about it.

When los federales decided to prosecute then-Senator Ted Stevens of Alaska, they made the conscious decision not to turn over evidence that was favorable to the late senator. No one outside the Justice Department knew about the withheld evidence until Attorney General Eric Holder asked that the conviction be set aside in 2009.

Mr. Stevens never knew about how he had been railroaded because he died in a plane crash in 2010, before the results of an investigation ordered by Judge Emmet Sullivan were released. Mr. Stevens' reputation was ruined as a result of the prosecution. The report, authored by attorney Henry Schuelke III outlined the systematic method by which prosecutors denied Mr. Stevens his right to a fair trial.

Despite the evidence of the scope of the misconduct, Mr. Schuelke did not recommend that the prosecutors face criminal charges for their actions because Judge Sullivan hadn't given prosecutors a "clear and unequivocal" order to follow the law.

“Does it concern you that the only reason these prosecutors escaped criminal charges is that the judge in the Stevens case didn’t file an order specifically telling the prosecutors that they should follow the law?” Sen. Kay Bailey Hutchison (R-Texas) asked Holder today.

That's funny, I never knew that our obligation to follow the law depended upon a "clear and unequivocal" court order to do so. Brady is quite clear when it comes to the duty of a prosecutor to hand over exculpatory evidence to the accused. There was no need for a judge to lean over the bench and inform the prosecutors that they needed to follow the law.

This week the Justice Department is set to release an investigative report that details the ways in which the prosecutors handling the case disregarded their ethical duties and knowingly withheld evidence in order to obtain a conviction. The report is expected to call for sanctions against the prosecutors.

But what sanction is appropriate for the people that smeared Mr. Stevens' reputation? The only appropriate sanction is disbarment. Until prosecutors who violate Brady are punished, the practice will only continue. As it stands, the only sanction is that a conviction may be overturned should a court find the violation wasn't just harmless error.

It remains to be seen whether anyone has the backbone to hold the state to its duties under the law.

Report documents prosecutorial misconduct

A USA Today investigation revealed 201 cases between 1997 and today in which federal prosecutors committed various acts of misconduct that resulted in convictions. The violations ranged from not handing over Brady material to defense attorneys to sitting by and letting prosecution witnesses lie under oath. In 47 of those cases, defendants were either exonerated or set free after the misconduct came to light.

One of those rules, established by the Supreme Court nearly 50 years ago in a case called Brady v. Maryland, is that prosecutors must tell defendants about evidence that could help prove their innocence. Withholding that evidence is "reprehensible," the court later said.

The article highlights the injustice that Mr. Nino Lyons of Florida suffered when prosecutors failed to turn over Brady material in his drug case. During his trial, federal prosecutors put inmates on the stand who all testified that Mr. Lyons sold them dope. But prosecutors failed to disclose evidence to the defense that would have discredited many of the jailhouse snitches the feds paraded on the stand.

The violation only came to light because one line in a 40-page sentencing report indicated that some evidence may not have been turned over. Prosecutors then dropped the drug charge against Mr. Lyons while the judge tossed out the rest of the case. According to one of Mr. Lyons' attorneys, Robert Berry, the only reason the misconduct came to light was because Mr. Lyons' case was tried.

The sad truth is when some 90 - 95% of cases are resolved with plea bargains, there are a lot of cases that are never investigated properly. There isn't a whole lot of investigation going on in the Harris County Criminal (In)justice Center when prosecutors are making time served offers on misdemeanor cases to defendants who were unable to post a bond. Those defendants who sit back in the holdover cell are looking for a way out of the disgusting mess known as the Harris County Jail -- given a choice of pleading guilty and walking away or staying in jail while their court-appointed attorney investigates their case; the path of least resistance is the most popular choice.

I've had more than one prosecutor make an offer on a new case and then get irritated when their offer is rejected in favor of resetting the case to allow more time for investigation. The only way to change this cultural mindset is to shine a light on what goes on behind closed doors -- and the only way to do that is to push cases to trial.

Harris County prosecutor accused of hiding exculpatory evidence

Harris County Assistant District Attorney Denise Oncken was accused by defense attorneys of hiding Brady material in a child sexual assault case. Ms. Oncken is the chief of Harris County's Crimes Against Children division.

According to defense attorney Bill Stradley, Ms. Oncken hid evidence that the alleged victim originally said her assailant was black, not white.

First Assistant District Attorney Jim Leitner, a former defense attorney until his appointment by Pat Lykos, denied the allegations. Mr. Leitner also added that even though defense attorneys ask to review prosecutors' files -- they often only spend a fraction of the time that he thinks it should take to process the data.

Obviously Mr. Stradley spent enough time reviewing the file to locate the evidence that the state failed to disclose.

A hearing on the matter was scheduled for today.

UPDATE:

At today's hearing, Visiting State District Judge Van Culp ruled that the prosecutor should have turned over the information about the alleged victim's original identification. The judge then ruled that because the information was discovered prior to trial that a mistrial was not warranted.

Tarrant County District Attorney may be removed from death row appeal

The Tarrant County District Attorney's Office is facing the prospect of being removed from the death row appeal of Chelsea Richardson due to allegations of prosecutorial misconduct.

Ms. Richardson was convicted in 2005 of capital murder for the killing of her boyfriend's parents. (Her boyfriend and another man are currently serving life sentences for the murders.)

Allegations have arisen that Mike Parrish, the prosecutor who tried the case, withheld Brady material from Ms. Richardson's attorney and interfered with the attorney-client privilege by obtaining information from a member of Ms. Richardson's attorney's trial team.

Bob Ford, Ms. Richardson's appellate attorney, has alleged that Mr. Parrish failed to turn over a psychological report that was favorable to the defense.

This isn't the first time that Mr. Parrish, who has since left the Tarrant County D.A.'s Office, has been in hot water for alleged misconduct. Back in December the Texas Court of Criminal Appeals reversed the capital murder conviction of Michael Toney because Mr. Parrish failed to turn over at least 14 documents that contained exculpatory evidence. The Attorney General's Office is handling the retrial because the Tarrant County DA recused his office from the matter.

Visiting State District Judge Steven Herod of Eastlands County will notify the attorneys of his ruling later.

Withholding exculpatory evidence

"We now hold that 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." -- Justice Douglas, Brady v. Maryland, 373 US 83 (1963)

"The prosecutor in a criminal case shall...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 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..." Texas Disciplinary Rules of Professional Conduct, Rule 3.09(d)

Perhaps Donna Hawkins of the Harris County District Attorney's Office should rethink her position that exculpatory material will only be turned over to attorneys and citizens accused upon request.

Breath test operator under investigation

Last October, Dee Wallace, at the time a technical supervisor for the Texas Department of Public Safety in charge of maintaining breath test machines, was fired after it was disclosed she had filed false maintenance records on the machines under her supervision. Now it's Officer Michael Wick of the Houston Police Department on the hot seat as a result of a case in which he falsely accused a passenger in a vehicle of intoxication manslaughter.

On January 12, 2007, Officer Wick was involved in the investigation of a fatality accident in which he charged a passenger with intoxication manslaughter. That case was dismissed and the actual driver pled guilty last week and was sentenced to three years in state jail (not quite as good as the deal the daughter of a juvenile court judge received for causing the death of her boyfriend).

"I don't think...people are going out of their way to make cases for productivity reasons." -- Gary Blankinship, president, Houston Police Officer's Union

Wick has been with HPD since 1984 and has been involved in hundreds of DWI investigations. As a certified breath test operator, Officer Wick must provide a statutory warning to anyone arrested for driving while intoxicated before he can administer a breath test. His testimony that he provided the warning and that the driver refused the breath test can be used by the state to infer guilt at trial. That same testimony at a license suspension hearing can bring about a 180 day (or longer) suspension based on the driver's decision not to blow into the machine.

Harris County prosecutors were notified on January 28, 2009 that there may be Brady material (evidence in the state's possession that might tend to cast doubt on the citizen accused's guilt). Donna Hawkins of the Harris County District Attorney's Office said that the material would be turned over to any defense attorney or citizen accused upon request (another reason to file those discovery motions and get rulings prior to trial).

Just how out of control is the state's breath testing program? Are these just "isolated incidents" or are they just the tip of the iceberg?