Monday, November 17, 2008

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."
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.


Anonymous said...

Yet another case of heavy-handed prosecutors looking for the 'win'. I wish there was some way to know an exact number on cases like this. It would probably blow us all away...

Anonymous said...

Funny how things that are "against the law" for the taxpayers all have grievous penalties but offenses "against the law" for government employees seem to have none.

This prosecutor should resign from the bar. Failing that, she should be sued in civil court. In Justice, she would serve the exact time she stole from this defendant.

The bar is burning its legitimacy with actions like this. Not good for the country.

Sam said...

Are you correct when you stated that he pled to these charges despite what appears to be clear Brady violations? What about the defense attorney who convinced a supposedly innocent man then, to plead to the life sentence?

Anonymous said...

Modern courts and prosecutors can force anyone to plead guilty to SOMETHING in exchange for just having the whole life-destroying process END. Judges in my county, (Smith) set excessively high bail. If you make it, they refuse to provide councel. If you don't make it, you sit in jail until your trial comes up, hopefully within a couple of years. Or so. The prosecutors come in and offer a deal for a plea to a lesser charge.

Works like a charm, nearly all of the time.

Anonymous said...

If this is a 1995 prosecution, the elected District Attorney would have been John Vance and not Bill Hill.

Gritsforbreakfast said...

Thanks 7:55, I changed the error about Vance in the text. For some reason I thought Vance left after two terms in '94, but I doublechecked and you're absolutely right.

Anonymous said...

I talked with Jennifer Emily (the reporter) yesterday to find out who the prosecutor was.
She told me and then said that she had included the name of the prosecutor in the article, but that her editor had cut it.

Anonymous said...

It didn't surprise many people at the Dallas Courthouse that Ms. Hogue violated Brady. I think it surprised Ms. Hogue more that she was outed. Kudos to Jennifer Emily.

123txpublicdefender123 said...

As someone who used to work in the trenches there in Dallas, it does not suprise me at all that Patricia Hogue apparently egregiously violated Brady.

Scott, you would not believe some of the conversations I had with prosecutors in Dallas about Brady when I was there. One ADA who was sent by Bill Hill to speak at a local criminal defense lawyers' group's ethics CLE was asked if the DA's office had a written policy on exculpatory evidence. The answer was "No."

I once had an argument with a prosecutor who was a felony chief about Brady where he insisted to me that, if he got an expert report that failed to inculpate the defendant, he had no duty to disclose that. His reasoning was that such a report would just be an expert's opinion and so it wasn't necessarily exculpatory. I probably argued with him for 10 minutes, and his mind was not changed. I kid you not.

This is the type of attitude that was fostered at the Dallas County District Attorney's Office when I was there. Sadly, even if you found out about suppressed evidence, the trial judge was likely to do absolutely nothing about it.

Remember this case?

Anonymous said...

We are appealing a manslaughter conviction in Mississippi where our client's defense was self-defense, and we found out after the trial that the prosecutor withheld a taped conversation that was made before the shooting wherein the victim stated he wanted a gun, although we filed five separate discovery motions including a request for CDs or tapes. I also think the prosecutor should be disbarred. We even had a hearing where the D.A. admitted under oath that he did, in fact, have the CD of the conversation and withheld it from the defense (us). And, that is only ONE exculpatory piece of evidence that was withheld. Our justice system is nowhere near just.

Anonymous said...

Until someone or some governmental body passes laws that have teeth we will never see a straight DA's office. Yes 80% of the time, maybe even 90% of the time they play by the rules, but in this CSI world, DA's will always play that 5% or 10% game to get the big win. Elections are hard to rig anymore, so they have to get points somehow...

Anonymous said...

I once had a conversation with a DA who thought that Brady evidence was that testimony given by a witness named "Brady." The sad thing, is this is only partly sarcasm. In Dallas, there are many DA's who feel that evidence is not exculatory if they do not believe it or find it incredible. So, rather than turn it over, they hide behind their belief that no one else would believe it and therefore is not exculpatory. Egads!! The humanity!!