Tuesday, July 16, 2013

'Brady' violation resulted in directed acquittal but failed to garner state-bar sanction

The Houston Chronicle brings word of a remarkable case of prosecutors allegedly woodshedding an eyewitness and withholding exculpatory evidence ("Innocent Texas City man wants $3 million after 10 months in jail," July 15). The conduct was so egregious the judge ordered a directed verdict in favor of the defendant. Robert Stanton's story opened:
A Texas City man who spent 10 months in jail for a crime he did not commit has filed a $3 million federal lawsuit against officials in Galveston County and Texas City.

Joshua Bledsoe was released from custody in June 2011, when state District Judge Susan Criss issued a direct verdict in his favor. The acquittal was ordered on grounds that former Assistant District Attorney Jon Hall and the DA's Office withheld exculpatory evidence, according to the lawsuit filed Feb. 21, 2013.
A directed acquittal specifically because of concealing exculpatory evidence is a rare bird indeed, in part because evidence concealed isn't available at trial to contradict the prosecution's case. It's usually discovered long after the fact when the damage has been done. Bledsoe's attorney must have done a fine investigation to pull that out of a hat. Here are the specifics of the alleged Brady violation, again from the Chronicle:
According to the original petition, Bledsoe's attorney Taft L. Foley II obtained a 911 tape with eyewitness Tina Mullins, who told the dispatcher that the suspects were wearing ski masks. She later identified Bledsoe in a photographic lineup.

The lawsuit charges that Texas City police and the DA's Office pressured Mullins into identifying Bledsoe. Mullins is not a party to the lawsuit.

"The defendants deliberately and maliciously caused the prosecution to commence by deliberately and intentionally fabricating some evidence, by deliberately and intentionally withholding some critical favorable evidence and by deliberately and intentionally mischaracterizing some critical evidence in their possession, custody and control," the lawsuit states.
Where's the state bar on this, one wonders? The directed acquittal two years ago specifically based on grounds of withholding exculpatory evidence ought to make the disciplinary committee's job pretty easy, but according to the state bar website Jon Hall has never been sanctioned.

UPDATE: More on this case.


Anonymous said...

Judges don't have the authority to grant a directed verdict for a "Brady violation." Either the paper got it wrong or the judge grossly exceeded her authority.

Gritsforbreakfast said...

Perhaps it was me who over-simplified things in the headline. From the Chron story, it seems the evidence concealed exonerated him. That the defense had to find it instead of the prosecutor handing it over was incidental to the fact that the guy actually didn't do it.

That said, it'd be interesting to see the relevant portions of the trial transcript.

Jennifer Laurin said...

Was a state bar complaint filed? By, for example, Mr. Foley?

Brad Walters said...

No one in a position to take action on these matters has the will to do so. So sad. By the way is Ken Anderson still on the bench??? Elizabeth Coker?? Jones??? Zimmerman was acquitted, but Judge Nelson during trial said it would be too time consuming to consider Brady violation sanctions against the prosecutors. Prosecutors pressured to win convictions have every incentive to violate defendants' due process in order to win because it is a rarity for a prosecutor to face any punishment for these types of violations. Judges won't sanction and ban prosecutors from their court for this nonsense, the bar won't suspend or revoke licenses even in serious cases like Anderson. What is the purpose of a law license if it does not assure clients of a certain level of professionalism and honesty?

Gritsforbreakfast said...

Jennifer, of course, we can't know whether a complaint was filed or not. If they're not sustained, they're secret.

That said, maybe a good legislative fix to consider in 2015 would be to give the DAs a duty to self report, the way crime labs must self-report problems to keep accreditation. Clearly the ADA's supervisor, the elected, the judge, lots of people knew, but there's no duty to report or other formal mechanism to notify the bar.

Anonymous said...


There is...

Texas Disciplinary Rules of Professional Conduct

Rule 8.03 Reporting Professional Misconduct

(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

And as for your comment "the way crime labs must self-report problems to keep accreditation" -- that's a joke, too.

Anonymous said...

Anon @ 3:06:00, the judge may not have the "authority" to grant a directed verdict for a Brady violation, but the state can't appeal an acquittal mid-trial. I guess the State Bar could go after the judge. You know, when they get done disciplining the prosecutor.

Gritsforbreakfast said...

6:21, having sat through many Forensic Science Commission intake meetings, I can tell you self-reporting by crime labs has worked better than I expected when it was first required. E.g., that's how the Jonathan Salvador case came out. Without the accreditation requirement that they self report, IMO we'd have never known about it.

Gritsforbreakfast said...

Another thing, 6;21, maybe the issue is that 8.03 has no teeth. Crime labs can lose accreditation for failure to report misconduct. If lawyers don't report their peers, it's not like they're at any remote risk of losing their license.

Anonymous said...

It is good to be precise about some things. Regarding the TFSC and the self-reporting requirement for laboratories, this is by statute limited to "professional negligence or professional misconduct". So not all problems are reportable. Additionally, this is a stand-alone requirement, and is not driven by any accreditation requirement imposed by DPS. The TFSC is not empowered to pull the accreditation of laboratories. DPS may pull accreditation because of problems associated with the reportable negligence or misconduct. But it doesn't appear from anything that I have seen that DPS could pull accreditation simply because a laboratory failed to report an instance of professional negligence or misconduct. There would need to be something more.

Anonymous said...

There's definitely something about this story that doesn't quite add up. What was the DA's office doing becoming involved in the identification by the eyewitness? Isn't this something that's typically done way before a case is ever referred to the DA's office? 3:06 is correct in that the judge has no legal authority to direct a verdict of acquittal on the basis of a Brady violation. Was the original 911 recording even transmitted to the DA's office? The Chronicle article leaves a lot of this information out. Sounds to me like there may be a little financially motivated opportunism at play here.

Anonymous said...

The original news reports on this case indicate that the directed acquittal was because there was insufficient evidence to support a conviction after the eyewitness identification fell apart. There was no mention that the Brady violation was the reason.

Gritsforbreakfast said...

7:54, to be precise, it's not that DPS could pull accreditation but the accrediting bodies themselves require the self-reporting, which in particular is part of ASCLD/LAB's mandatory protocols.

Anonymous said...

OK, if they (aka: "Us") laugh at the Rules, then we ("Them") the people, must step in and way before 2015.

If they want to [publically) declare war on the "Them" crowd , we must either fight back or surrender. Btw, if you are not an ADA or a Cop you are considered a "Them" (their words not mine).

With that, I'm calling for the abolishment of the State Bar of Texas. Anyone know where we can locate the Rules we must follow to get the ball rolling? Afterwards, (post abolishment) anyone having a complaint against an elected or appointed official and / or his staff could file directly with the Atty. General & D.O.J. (all complaints made public from start to finish). No more secret frat clubs to hide your criminal activity in.

I'm also calling for the immediate refusal to participate in any & all jury pools. If you play their game, you are part of the problem. Simple tell the court (when asked, read out the following) that you follow the criminal justice reform movement close enough to know right from wrong and want nothing to do with a Fake one-sided Justice System. Being forced to pay taxes is one thing and acceptable but to use taxes to fund the select few picked for post conviction relief ($80,000 per year plus, plus is another. To find out years later that I might have been on a panel that wrongfully convicted another due to half truths, evidence & description issues not allowed in and jury room bullies wanting to get it done is unacceptable. Poof, you are stricken and home by noon. Don't forget to pass out a few suckers on the way out.

Who in the hell am I? a goddamn living example of when the system is allowed to run amuk with little or no Real consequences on your dime. You could be next.

Anonymous said...

7:54 here

Certainly, a professional negligence/misconduct event would be reportable to ASCLD/LAB. But ASCLD/LAB does not require that a lab report the event to the TFSC. That requirement is a separate statutory requirement in Texas.

Accreditation by a national accrediting body is not sufficient for a lab to operate in Texas. Labs must be accredited by DPS, and under state law it is DPS's accreditation that is required for testing results to be admissable in court.

A laboratory must apply for DPS accreditation. That application is separate and distinct from the accreditation process performed by bodies such as ASCLD/LAB. DPS has chosen to require that laboratories be accredited by one or more approved accreditation bodies in order to qualify for DPS accreditation. That approach is not required by state law; it is simply a choice that DPS has made under its rule making authority.

DPS is not bound by the accrediting organization's determination. If a lab has a professional negligence/misconduct event and ASCLD/LAB does not view the event as being sufficiently serious to pull ASCLD/LAB's accreditation, DPS could still pull DPS's accreditation.

It is also possible for DPS to accredit labs on its own, without accreditation by organizations such as ASCLD/LAB. To my understanding this has been done for some new laboratories. Accreditation by ASCLD/LAB requires a history of casework before accreditation can be given. So a new laboratory can be issued provisional DPS accreditation during that period before it qualifies for accreditation by a national organization.

Gritsforbreakfast said...

I don't disagree with any of that, 11:06/7:54. But whichever is the chicken and whichever the egg, my point is that the self-disclosure requirement for crime labs has been more effective than I expected, while for attorneys the rule cited above appears to be honored mostly in the breach.

Anonymous said...

@ 7:54-

"If a lab has a professional negligence/misconduct event and ASCLD/LAB does not view the event as being sufficiently serious to pull ASCLD/LAB's accreditation, DPS could still pull DPS's accreditation."

Has DPS ever pulled accreditation of a crime lab because of "professional misconduct"? Not even the Salvador event caused them to blink.

In theory, accreditation is a great idea. In practice, however, it has become a "document formality" -- a cash cow for those agencies at the top.

(Grits - sorry this is off-topic. The next time you post about forensic science, I'll elaborate.)

Anonymous said...

The Connecticut state lab lost its accreditation at one point. It's not clear why the Salvador case should have triggered a loss of accreditation for DPS. Certainly the TFSC review didn't recommend that.