Thursday, December 18, 2008

CCA rejects death penalty cases over Brady violations: What statutory changes might deter withholding exculpatory evidence?

Here's something you don't see everyday, from the Dallas News Crime Blog:
Two death row inmates received favorable rulings from the Texas Court of Criminal Appeals on Wednesday, a rare occurrence, but particularly unusual because of the reasons: possible prosecutorial misconduct.

Michael Roy Toney, who was convicted in Tarrant County for killing three people in 1985 with a briefcase bomb, was ordered a new trial because of his claim that prosecutors failed to disclose evidence. Joseph Andrew Prystash, who was convicted in a 1994 murder-for-hire case out of Harris County, had his case sent back to the trial court for consideration of his claim that the state suppressed evidence.

Another death row inmate making a similar claim, Rodney Reed, was not so lucky. The Court denied relief, saying Reed, who was convicted of murder in Bastrop in 1996, failed to show the state did not disclose favorable evidence.

See the Fort Worth Star Telegram coverage of the Toney case.

Rodney Reed was denied a new trial by the CCA despite strong new evidence which only emerged after his conviction implicating the victim's fiance, a police officer named Jimmy Fennell, who is currently "serving 10 years in prison after pleading guilty in September to kidnapping and improper sexual activity with a person in custody." Reported the Austin Statesman:
Wednesday's court opinion noted some of the evidence that Reed's lawyers say suggests Fennell's involvement — including that he gave deceptive answers in a polygraph test during the investigation — "arouse a healthy suspicion that Fennell had some involvement in Stacey's death."
Even so, the court ruled that a "healthy suspicion" someone else committed the crime does not rise to the level of "reasonable doubt" and that a jury wouldn't have ruled any differently. Personally I doubt that they can really know that with such absolute certainty, given how much new information has come out about that case.

In any event, the common thread here are allegations of prosecutorial misconduct - specifically so-called "Brady" violations (i.e., withholding exculpatory evidence).

I wish I believed these two cases indicated the Court of Criminal Appeals is becoming a more interventionist watchdog over prosecutorial misconduct, but their past record can't be mitigated by just a couple of cases, though I certainly hope this is the beginning of a shift in thinking among the court's majority. Still, the CCA's oversight isn't a significant enough deterrent to Brady violations and I believe more preventive measures are needed.

The single best solution would be to mandate an "open file" policy in every Texas jurisdiction (right now it's done at the discretion of the local DAs and county attorneys) so that defense counsel could have access to the same police reports, witness statements, and other documents the prosecutors get to see. That system works wonderfully in Tarrant County, where these files are kept online and defense counsel can access files on their cases via a password that lets them see everything in there.

A more punitive approach was suggested by Dallas District Attorney Craig Watkins, who in the past has endorsed boosting criminal penalties for knowing Brady violations. Incoming Harris County DA Pat Lykos has also said that could be appropriate in some cases.

For my part, I'm not sure creating some new crime is needed so much as tweaking an existing one to allow its use in the types of cases where Brady violations routinely come up. I'm not a lawyer, but I don't see why a knowing Brady violation couldn't (theoretically) be prosecuted as a Class A misdemeanor under the rubric of "abuse of official capacity" (See Title 8, Sec. 39.02 of the Texas Penal Code). The problem comes because too often the violations aren't identified until years after the fact when the statute of limitations has already expired.

(Let me know in the comments, by the way, if you think a Class A misdemeanor is a stiff enough offense category for knowingly withholding exculpatory evidence in a capital case.)

Perhaps instead of creating a new offense, the timeline on the statute of limitations for "abuse of official capacity" could be changed to begin when the problematic behavior is discovered instead of when the offense is committed. After all, the harm to the falsely convicted defendant has been ongoing and didn't stop two years after the event.

Another option would be to create a new, separate crime with its own penalty categories, but in general I believe we've got plenty of laws on the books and for the most part only need to tweak and adjust the ones we have.

It's not so radical to think public officials deserve this extra layer of accountability. The statute of limitation for theft by a public servant is already one of the longest on the books - ten years - because of the extra expectation of integrity imposed on public servants. Revamping the limitation for "abuse of official capacity" would help ensure rogue prosecutors and others in positions of authority aren't rewarded for successfully concealing their crimes.

Equally important to realize: To a large extent this problem stems just as much from the failure of the legal profession's self-regulation of individual prosecutors' misdeeds. In truth, I wish the State Bar of Texas were handling its own business more aggressively so that it weren't necessary to turn to criminal statutes to enforce prosecutorial integrity.

If the state bar disciplinary committee began sanctioning prosecutors who engage in Brady violations or even, in egregious cases, stripping them of their license to practice law, there would be no need to contemplate tougher criminal penalties.

If that day ever comes, these problems would soon, IMO, self correct. Most prosecutors aren't engaging in overtly unethical behavior and the rest largely do so because there's virtually no risk they'll face any consequences for their actions. After all, lawyers, as a class, are generally a risk-averse lot. I'll bet they're much more responsive to adjustments in criminal sanctions than almost any other class of defendants.

MORE: Eye on Williamson County has more on the Reed/Fennell case.


Anonymous said...

A misdemeanor is absolutely not stiff enough for someone whose misconduct caused the wrong person to be convicted. But regardless of the level of the crime, can you imagine the Collin Co. DA prosecuting one of his subordinates for this? No way in hell.

Regardless of criminal penalties they should be disbarred.

Anonymous said...

Agree; get rid of any attorney that is proven to be crocked. No question...if it was a direct violation...send them to jail after disbarring them.

Anonymous said...

This type of behavior will continue until a few prosecutors are prosecuted. I hate to add to the already ridiculously long list of criminal statutes in this state but I think that is going to be the only way to stop this kind of behavior. I also think that they need to go back and look at sitting judges who, as prosecutors, engaged in misconduct. Judge Jack Skeen in Smith County withheld evidence in the Kerry Max Cook case and was guilty of numerous other acts of misconduct, many of which were documented in newspaper articles. He is now a sitting district judge who still engages in misconduct such as conspiring with the DA's office to make sure they win their cases and setting ridiculouse bail when the DA's office wants someone kept in jail. He is a disgrace to the office but will probably remain in office because no one has the guts to run against him and take on the political machine in this county. If you are unfortunate enough to end up in his court you don't stand a chance of getting a fair trial. My point is that it's not just the conduct of prosecutors we need to look at but we also have some judges that should be behind bars.

Anonymous said...

No. I think a range of 2 to 10 years wihtout parole sounds good to me. I also think judges should be held to a similar standard.

Anonymous said...

Did you you hear that Patricia Hogue?!

Anonymous said...

Don't forget the Robert's case. Another capital case overturned.

Anonymous said...

I'm with Watkins. An unethical or grossly negligent (unethical masquerading as incompetent) prosecutor does more harm to society than most murderers. Think of all the families destroyed, economic ruin, children who die from drug overdoses to parents wrongly convicted, et cetera. It needs to be a crime to abuse this power. Otherwise there's not enough motivation for these corrupt DAs to stop bad behavior.

I also very much agree with the comments here on Judge Jack Skeen and other judges who engage in misconduct. It needs to be a crime. People who are prosecturos and judges have a knowledge of the law and their ethical duties.

The ABA should also make sure that failure to disclose exculpatory evidence means immediate disbarment for prosecutors.

Anonymous said...

A misdemeanor is not even equivalent to a slap on the wrist. They should be held accountable. The punishment should fit the crime. Official oppression among probation officers is beginning to ruin lives and devastate families. Probation needs to reined in as well.

Anonymous said...

I've said it before, but I still cant believe that either side are permitted to withold evidence in Texas. How can anyone make the best (even if it isnt right) decision if they dont know all the available facts? It is patronising to the juries that the prosecution feels that they cannot trust a jury to convict if all the evidence is presented.

Anonymous said...

To put someone in prison for the rest of their natural life, or to put them on death row, and only to receive a misdemeanor punishment in return would be a travesty. The punishment for a Class A misdemeanor is only up to 1 year in the county jail and up to a $4,000 fine. On that sentence, the county would give a 2 for 1 or a 3 for 1 credit, meaning if a person were to receive the maximum sentence, they would still be likely to serve no more than 6 months in jail. Still, that is an unlikely punishment. Also, consider that in some Texas counties, the person committing the offense is the actual elected official, which would require a special prosecutor be brought in, not to mention a visiting judge because the DA and the judge see each other daily and are good buddies.

Sure, the SBOT should take action against these invidiuals. But is disbarrment enough for a man who spent over a decade on death row so a DA could pad his conviction stats and win an election? The ABA has no power to discipline Texas lawyers, who are not even required to hold membership in the ABA. It would seem that the only fair option, and the only one with any teeth, is through the courts. However, somebody tell me how society is supposed to get a fair trial of these individuals in state court.

Anonymous said...

The prosecutor represents the folks that pay taxes and consequently their salary.

There should be huge fines assessed against DA offices when they withhold exculpatory evidence.

The culture of win at all cost would quickly change to win within the law to avoid fines.

The rest would take care of itself. A DA would not be re-elected if his office had to pay a fine thereby costing the voters money.

Anonymous said...

Hard to understand how the Reed/Fennell case doesn't show reasonable doubt when the fiance of the victim, a police officer, later commits kidnapping and sexual assault.

I'm disgusted.

Anonymous said...

Some DAs need to be jailed.

Sunray - obviously it's not legal to withhold exculpatory evidence from the defense - hasn't been since the Brady case.

But the Texas courts have a long history of trying to subvert federal decisions and laws by creating the appearance of compliance without the fact.

Then, I think that they just hope no one will notice when they make their outrageous decisions.

Anonymous said...

Scott, great point about extending statute of limitations so that the crime begins at the moment when the person who was affected by it discovers the witholding of exculpatory evidence.

Anonymous said...

How can the public put pressure on the Texas Bar Association to disbar bad prosecutors? That's what we need to start doing on a constant basis.

Anonymous said...

18 U.S.C. sections 241 (Conspiracy Against Rights) and 242(Deprivations of Rights
Under Color of Law) Violations:

Transparency International, a prestigious coalition of anti-
corruption advocates, reports that “(i)n most democracies today,
corrupt politicians, officials and businessmen can exploit both
civil and criminal law to silence their critics.” President-Elect
Barack Obama and Vice-President-Elect Joseph Biden have
promised to counterbalance such abuses of power. That can
hardly be done through a U.S. Justice Department more
responsive to power, wealth and the corresponding prestige than
compelling evidence of criminal civil, constitutional, and human
rights violations.

Read Our Letter To Obama

Anonymous said...

Study of Small Town Justice

It seems several people may not agree that Abilene, Taylor County, Texas is a "Friendly Frontier".

They essentially credit the city's law enforcement with systematic or consistent victimization of residents lacking political influence. Anecdotal evidence suggests minorities and poor Caucasians are prime targets.
Reportedly every component of Taylor County's legal system contributes to the problem (i.e. the police and sheriffdepartments, state and federal prosecutors, state and federal courts, public defenders, and private attorneys).
Woeful tales of injustice shared by some current and former Taylor County, Texas residents, have a common theme. Many attest to retaining or being appointed an
attorney who promises, but ultimately fails to zealously
challenge for them the apparent wrongs of area government and/or big business.

Anonymous said...

I am a lawyer and I am embarassed by the attitude of the State Bar to breaches of the ethical rules by both defense and prosecution. If you read the disciplinary reports in the TX Bar Journal, the only ethical violations that get much attention involve those lawyers who dip into client funds, or who themselves get convicted of a crime. I interviewed once for a job in the office that screens attorney grievances and it was quite plain that the bar does nothing to truly investigate claims of misconduct such as Brady violations or even the most appalling ineffective assistance of defense counsel. Incidentally, I think that one of the quickest ways to make the legal profession wake up would be to adopt a practice of naming the offending attorney when the courts file an opinion in a Brady or IAC case - at present they are normally only referred to by their role, not by name, so a search for other cases where that person has been involved is made very difficult.

Anonymous said...

Anon 12/19 6:55, what's really disgusting is what's been lost in all the media coverage of the Reed case -- the fact that Rodney Reed was only ever looked at as a suspect in the Stites murder (because God knows there was NO information that he ever knew her, much less dated her) because he attempted to abduct, rape and kill another 19 year old girl who bore a striking resemblance to Stacey Stites, in the same location, at the same time of night, a mere six months later. Fortunately, that young lady fought like a tiger and got away and it was that event, and only that event that led the investigators to look at Rodney Reed. Disgusted? It's also disgusting that a mere six months before he murdered Stacey, he raped another woman right by the railroad tracks where Stacey's truck was found.
Those facts, the eyewitness identifications, and the DNA that backed them up were all introduced at his trial, along with the facts of 4 other violent rapes. And no, those cases didn't go away. You can call the District Clerk and you will learn that still pending against Reed are the two cases I just mentioned, as well as an aggravated sexual assault from 1989 that involved a home invasion rape of a 12 year old girl.

Is Fennell a creep? Absolutely. But his misdeeds pale in comparison to those of Reed.

Anonymous said...

Prosecutorial misconduct should most certainly warrant more punishment than a misdemeanor. If a sentence is reversed due to the withholding of exculpatory evidence then the prosecutor should face a criminal charge along with a fine in the amount of whatever the trial had cost the taxpayers and the price of compensation to the defendant for the unlawful imprisonment. Try that just once and see if prosecutors don't start opening their files to the defense.