Concluded Judge Nanette Hasette (!) in her order reversing Macias' murder conviction, "The court concludes that the intentional suppression of evidence and lack of timely disclosure of exculpatory, mitigating and impeachment evidence described herein constitutes prosecutorial misconduct and undermines the confidence of the public in the judicial system, and the outcome of this trial specifically," Wrote courts reporter Krista Torralva ("Judge finds prosecutorial misconduct in murder case," 2/1):
Prosecutors could face criminal charges or state bar sanctions for violating evidence disclosure laws.Grits readers last saw Mark Skurka in another Krista Torralva story reacting to evidence that his office may have prosecuted false claims against jail inmates for assaulting corrections officers, a charge his office filed 30-40 times per year. He tightened up corroboration requirements to make sure it wouldn't happen again while failing to revisit old cases for possible innocence claims or prosecute a deputy who allegedly beat, then falsely accused, an inmate.
Defense lawyer John Gilmore said he has not filed a grievance with the state bar but is considering the options. The defense also is looking into whether the law could prevent prosecutors from retrying [Courtney] Hayden, 25.
Two weeks after a jury sentenced Hayden in December to 40 years in prison, [prosecutor Jenny] Dorsey faxed a letter to the defense telling them the medical examiner's initial opinion of the fatal gunshot wound was different from his trial testimony. Dr. Adel Shaker testified Macias was shot from up to three feet away. But he initially believed the shotgun's muzzle was against Macias' chest, which defense lawyers argued supports self-defense. A text from Shaker to Dorsey before he testified said he "could live with three feet."
Hernandez said her family doesn't blame prosecutors. They felt Dorsey advocated for them.
Outside the courtroom, Hayden's mother, Maggie Hayden, condemned prosecutors' actions. She called the judge's order "vindication."
"(Prosecutors) owe it to the public to be truthful and they lied," she said. "I have no sympathy for them at all."
Prosecutor Mike McCaig, who represented the office, declined to comment. District Attorney Mark Skurka, who is in the second week of an attempted capital murder trial, issued a statement late Monday saying he agrees Hayden deserves a new trial but disagrees with the judge's findings of prosecutorial misconduct.
"Our office holds itself to a standard that exceeds that required by law, and for that reason I agreed that she should receive a new trial," Skurka said.
"As District Attorney, I have always strived to do justice and comply with all applicable law … And I have endeavored to instill that same sense of justice and duty in my prosecutors," Skurka said.
In a two-day hearing, defense lawyers accused Skurka of instructing Dorsey to not disclose Shaker's wavering opinion. Skurka denied the accusation but said in retrospect he didn't have all the information.
The letter Dorsey sent to [defense attorney John] Gilmore, under [supervising prosecutor Retha] Cable's direction, didn't mention a discussion with Skurka. A previous draft the defense subpoenaed showed Dorsey wrote Skurka's advice, "amounted to — don't worry, experts can change and develop their opinions over time."
This time last year, Grits authored a post titled, "Is reticence of Nueces prosecutors to disclose evidence an institutional failure?"
These latest allegations add to a nascent perception that the Nueces County DA's office tolerates or even somehow promotes a culture that condones concealing exculpatory, mitigation or impeachment evidence.
Go get 'em, Ms. Torralva. Your reporting recently has been worth the Caller Times subscription price.