Friday, April 27, 2012

Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?

Here's your chance to play oddsmaker.

A judge in Denton County says two prosecutors withheld evidence and committed prosecutorial misconduct, banning the pair from his courtroom for the offense. Reported the Denton Record-Chronicle ("Two banned from Burgess' court," April 7):
A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don’t have “the innate intellect of a fifth-grader.”

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess’ March 2 ruling that they willfully withheld exculpatory evidence from the defense — evidence that would have helped in his defense — Schultz was moved to the district attorney’s civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather  counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.
The prosecutors did not inform defense counsel that their star eyewitness had not, as earlier represented, positively identified the defendant, her husband, instead referring to the suspect as "he or she" and declaring she never saw a face.

The Record-Chronicle adds that the situation - though not a formal grievance - has been forwarded to the state bar:
Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against [prosecutors Bill] Schultz and [Forrest] Beadle. He defended their actions, stating that they did not intentionally withhold evidence.
If the conclusion of the Record-Chronicle account accurately portrays it, Judge Burgess sounds furious over the incident:
In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

“My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did,” Burgess said in his ruling. “I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don’t particularly like his answers, but he at least was honest.”

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another “[expletive] Brady motion.”

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

“And how disingenuous it is to get up here and testify that you don’t think that it’s Brady that the victim can’t identify by face or by anything other than smell and a boot who the attacker is ... ,” he said. “I’m going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They’re not allowed to appear in this courtroom until I rule otherwise.”

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

“A woman that was knifed nine times in the gut and elsewhere doesn’t get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader,” the judge said.
See the rest of the Record-Chronicle story for more detail.

My question: Given that the only prosecutor in memory publicly sanctioned by the state bar was Terry McEachern from the infamous Tulia drug stings - and that a recent survey of prosecutor misconduct findings by Texas appellate courts found no examples resulting in public state bar discipline - what are the odds the state bar publicly sanctions either or both of these prosecutors?

For my part, even if every jot and tittle of the judge's criticism is accurate, I couldn't go higher than 5% and would have a hard time justifying that number. Terry McEachern was disciplined because in that one case lightning struck, national and even international media honed in on the tiny South Plains community, and the activities he'd concealed of his undercover officer, Tom Coleman, were too well documented to ignore (largely thanks to mi amigos Nate Blakeslee and Jeff Blackburn, to give credit where it's due). So much attention had been drawn to the case IMO that the state bar disciplinary committee felt they would discredit themselves if they didn't act. But the system shouldn't require the case to be the subject of a 60 Minutes segment or a BBC documentary before the state bar mandarins decide to rein in rogue prosecutors. As a starting point, when judges tell them prosecutorial misconduct is going on in their courtroom and the elected DA's response is to move alleged Brady violator to another court, that should send up enough red flags to warrant a fuller investigation, even if the prosecutors' boss didn't submit a formal grievance.


Jennifer Laurin said...

Of course, under the current system, a necessary (though by no means sufficient) condition for the state bar to act is the filing of a formal complaint. The bar does not investigate on its own initiative, even with the sort of official and publicly available finding that was made in this case. Will Judge Burgess do so? Will the defense attorney do so? Will Mr. Uriostegui do so? It would be very interesting to know more about what barriers---real, imagined, or somewhere in between---exist to filing complaints in the first instance. In thinking about a menu of possible reforms, perhaps the question of what triggers state bar inquiry should be on the table.

Anonymous said...

See open letter to Judge Brett Hall, Rockwall County documenting police, prosecutor and judicial misconduct. Included are the SCJC complaint and State Bar grievance.

David Swingle -

Anonymous said...

You've mentioned several times now the recent survey of prosecutor misconduct findings. Do you have a link to that survey or know how we can see a list of the cases that were included in that study? That could be interesting.

Gritsforbreakfast said...

There are two analyses, 11:03, that I know of: One much larger one out of California (pdf), and a more truncated survey of Texas cases.

Anonymous said...

Wonder how often this occurs in other jurisdictions?

How many times has "goading the defense into a plea bargain" helped hide misconduct?

Gritsforbreakfast said...

11:34, it's really impossible to tell how often prosecutorial misconduct occurs, certainly from these surveys; there are flaws in any possible methodology you might use to estimate. All these data tell us is that - among cases identified - when it happens, the CA and TX state bars seldom sanction for it.

ckikerintulia said...

I'd say odds of any kind of sanction by state bar are pretty slim. You brought up the McEachern incident. Actually he only got a slap on the wrist in comparison with what he might have gotten. License suspension, on probation for how long, a year. He could keep right on practicing, could probably still be DA apart from the DUI in NM. If the DUI had been in Texas, DPS ,probably would have ignored.

Anonymous said...

Where do you find the cases which were indentified for inclusion in the Texas study. I'm not doubting the good intentions of those who did the study, I just think it might be helpful if people could see for themselves what the conduct of the prosecutors was in the cases they relied upon? Is that information available online?

Anonymous said...

Is this the same District Attorney who refused to press charges against Rogue Police Officer Robert Powell after he was caught committing perjury in a DWI hearing?

If so, talk about having a pattern of defending criminals as long as they're police officers or prosecutors.

Anonymous said...

My faith in judges has now been restored. Well, maybe just a tiny bit restored.

Help FREE Bryce said...

I just listed ten pieces of exculpatory evidence that was not used in the state murder case, against a 15 yr old. In Texas.

Anonymous said...

We need more judges like this ,I've seen a judge over look valuable information in a case, act like a two year old with his voice and demeanor,nevermind looking over seeing the bailiff playing on his flip screen cell phone for the whole case hearing , there is no justice that can be done towards a judges,lawyers any court employeed personal can act,say and do as they please ,

Anonymous said... this has great reading

Anonymous said...

Docile Jim Brady - Columbus OH

2012.04.28.Sa.T0623 EDT
Some probably illegal ideas ( do not attempt or threaten them in the United States )

¶ 1 Induce the disciplinary body with an offer it can not refuse , to force the rogues to the dock and sanction them appropriately .

¶ 2 Barrett's Model 82A1®

Rogue prosecutors will continue to be rogues until either the RISK:REWARD ratio is increased to such a level that they will change themselves , or they are no longer registered as lawyers or they are dead .

Thomas R. Griffith said...

Hey Grits, I love a blawg / blog post with a Q. and thanks for asking.

You might be a lil too generous with a ceiling of 5%. I'm at .5% and dropping. Especially since we learned that "McEachern the Miserable" was the only one in recent memory. Adding insult to injury (via Mr. Kiker) we learn it was only for looks.

*I propose that we (whom-ever it may concern) take a cue from what seems to get the State Bar's attention. Blitzing (all forms of media, state & local reps. including Mr. & Mrs. Governor) in mass for a set amount of time for each & every account of prosecutorial misconduct. We might as well consider a Petition for each incident over at for the cherry on top & beg Grits to deliver them to the board (since you are in the area). I'd do it if someone sponsored it. To be exact - "Documented Incidents" via the utilization of; certified copies of a Case File, Defense Case Files, Crime Victims Statements, Alibis Statements, Police Incident Report, Constable's Office Warrant Records, and / or Police Photo.

Just a thought but the odds are slim that anyone will have the energy to commit to anything other than their own experience. Thanks anyway.

Help FREE Bryce said...

I would like to add my son Bryce to the list for a prosecutorial petition. 4brycesbattle . org
Please include me.

Anonymous said...

Well hats off to Judge Burgess! Judges and prosecutors should realize correcting a mistake is far better politically and professionally than covering it up. Dallas has a string of exonerees and Craig Watkins has gained national praise for his conviction integrity unit.

Also we could have a gatekeeper for the State Bar + SCJC. Maybe a lawyer's coalition group not paid by the State to bird dog and track grievances. They could make sure the I's are dotted, the T's crossed and make it more public. Secrecy = corruption.

DEWEY said...

What are the chances?? Two. Slim and none.

Thomas R. Griffith said...

Hey Bryces Battle, consider going over to to get your petition up and running with all of the pertinent proof to garner support from the public at large. We'll be more than happy to sign it and hopefully a few GFB readers will also.

If all of the appeals have been exhausted consider contacting the Innocence Project of Texas for assistance. Thanks.

Help FREE Bryce said...

okay and thank you. I will work on a new petition and submitt it. I appreciate your comment. TY

Anonymous said...

I have testified in this court and found the Court to be less than candid. In fact, because my testimony was regarding an issue with the Court, I was threatened by the Court with jail and prosecution for perjury "before" I testified because my memory of the facts differed from the Court. After my testimony and cross, the Court realized I was correct and never even appologized. This judge is extremely immature, irresponsible and does not have the proper temperment to sit on the bench. He claims to be a christian but my take is that he will use anything he can to make himself look good. God help anyone who has to be in his court.

Thomas R. Griffith said...

If one was to read the comment left by the tick tock time stamp 4:48 PM, one might miss the contradictions.

He / she / it, states that the court threatened perjury charges if testifying untruthfully. (Sounds like good advice), don’t lie, whatever you do don’t lie).
Throw in a lil God help the cause and boom we are to believe that the Judge is the problem.

I wish to divert the hijacking attempt of the GFB Comment Section back to the original post and elevate Judge Steve Burgess of the 158th District Court status to that of Public Hero. Regardless of his actions being coordinated by a personal CYA motivation or simply doing the right thing for once ,doesn't matter. The only thing that does, is that the rogue ADAs have been busted named & banned.

History (certified case files) will reveal if they (bad guys) have a pattern of corruption leading up the brave actions taken by the court. Look for their names, for they’ll be coming to a court near you or hanging a shingle as they shift gears to represent clueless defendants. Thanks.

Anonymous said...

here's a good follow-up story:

Why didn't Tarrant County take any action when they found out the head of the misdemeanor division never turned over info about officers who were reported to have lied on the stand. Richard Alpert is being protected by the good ole boy system in Tarrant County instead of sticking up for all those poor individuals who were convicted based on false testimony. Shame.