Brady violation may lead to next Dallas exoneration

One of the worst examples I've seen of a so-called Brady violation - where prosecutors withhold exculpatory evidence in their possession from the defense - may be found in a story by Jennifer Emily in today's Dallas Morning News, which brings word of what may be Dallas' next exoneration of a convicted defendant in a sex crime, but this time not because of DNA testing. Reported the News ("Sex conviction from '90s in question because of withheld evidence," Nov. 17):

Antrone Lynelle Johnson twice was convicted of sexual assault as a high school student, earning him a life sentence.

Mr. Johnson, who is 31, contends that both cases from the mid-1990s were built on lies and prosecutorial misconduct. If a judge agrees, he could be set free as early as today.

Dallas County prosecutors illegally withheld evidence that might have cleared Mr. Johnson, court records show.

In one of the cases, a girl told the prosecutor that Mr. Johnson did not rape her. In the other, the girl gave conflicting statements about whether she had sex with him.

Mr. Johnson and his attorneys were not told until this year about either of the girls' comments – a violation of the law.

The Dallas County district attorney's office agrees that Mr. Johnson's first conviction – and life sentence – should be overturned. Mr. Johnson has already served a five-year sentence in the second case.

This wasn't a case where prosecutors accidentally failed to reveal information to which they didn't have access, it was an overtly defiant case of a prosecutor refusing to play by the rules:

A copy of a prosecutor's note in the court file from Feb. 5, 1995, reads: "Johnson did not make her give him oral sex. He took her in the bathroom and she told him she didn't want to do it, so he stayed in there and pretended and then let her out."

However, that information wasn't disclosed to the defense until earlier this year. You won't find a more blatant Brady violation than that, but believe it or not, there's virtually no recourse (besides releasing the falsely convicted defendant) when prosecutors intentionally withhold evidence of innocence, which clearly happened here:

No criminal charge exists in Texas for a prosecutor who commits a "Brady violation." The term refers to a 1963 U.S. Supreme Court case, Brady vs. Maryland, in which the court ruled that prosecutors violate a defendant's constitutional rights if they intentionally or accidentally withhold evidence favorable to the defense.

The prosecutor in Mr. Johnson's first case no longer works for the Dallas County district attorney's office. She did not return phone calls seeking comment. It is unclear from court records which assistant district attorney prosecuted the second case against Mr. Johnson.

Also unclear is the eventual fate of Mr. Johnson. Judge Francis cannot overturn his convictions; he can only make a recommendation to the Texas Court of Criminal Appeals. But the judge could order Mr. Johnson freed immediately, pending the appeals court decision.

Inexplicably, the reporter chose not to name the former prosecutor in question (who's now left the office). But for my money, if these allegations are true, that person should be straight-up disbarred. There's no way that will happen though - the Texas State Bar simply isn't in the habit of even admonishing prosecutors for Brady violations, much less ousting them from the legal profession when they've behaved unethically - even when they overtly withheld exculpatory evidence to send an innocent person to prison. For that reason Dallas DA Craig Watkins has called for the Legislature to enact criminal penalties for Brady violations (see here and here).

A couple of other notable aspects jump out about this case: First, while most of Dallas' DNA exonerations so far may be attributed to the tenure of long-time Dallas DA Henry Wade, this new possible exoneration implicates misconduct by lawyers under Wade's successor, John Vance, as the primary cause of a false conviction. Clearly the practices that lead to false convictions hadn't all completely ended after Henry Wade left office.

Also, this is an extremely unusual innocence case where a) no DNA was found and b) the defendant pled guilty. DNA exists in only a fraction of cases, but the practices that lead to false convictions - including prosecutorial misconduct, as in this instance - can occur in any kind of case, not just those with biological evidence.

RELATED: Attorney/blogger Robert Guest comments on the case, adding that:

Theoretically, every prosecutor is required to disclose exculpatory evidence, known as Brady material, to the defense.

In reality, defendant have no way to enforce this right. The problem is that defendants in Texas have very little right to discovery. Parties in a car wreck, or a divorce case in Texas, have a much greater right to discovery than criminal defendants.

For example, police reports do not have to be turned over to the defendant. Grand jury testimony can also be withheld. That is why Brady violations are nefarious. When a prosecutor purposefully denies Brady material to a defendant, the defendant may NEVER learn about this evidence. Ergo, innocent defendants may never be freed, or learn of the evidence that could free them.

NUTHER UPDATE: The Dallas News now reports (11-18) that the prosecutor in the case was Patricia Hogue, who said she doesn't remember the case but denies withholding evidence. She was one of the ADAs fired by Craig Watkins when he first took office.