Saturday, July 20, 2013

Transcripts, deposition detail alleged 'Brady' violation

After the Houston Chronicle published a story about a directed acquittal following an alleged Brady violation (withholding exculpatory evidence) by former prosecutor Jon Hall in a Galveston District Court, Grits linked to the article and lamented that the state bar had taken no action, basing that on the fact that no public reprimand had been issued more than two years after the event. My bad.

While it's true that as of yet there has been no disciplinary action, a source in Galveston informs me that, "The State Bar IS going after his license. They suffered a setback in a discovery hearing. They are appealing and I think they will win. [Mr. Bledsoe's] arrest was expunged. The DA used that as an excuse to say they cannot turn over their file, which contains  evidence of the prosecutor's [alleged] misdeeds." Grits must apologize for jumping to the conclusion that the state bar sat on their hands on this one: Sounds like they're at least taking the shot, which is all you can ask.

In a related update: Ask and ye shall receive! Grits mentioned earlier that it'd be interesting to read the underlying transcripts in the case, so many thanks to the long-time reader who passed them along. (This is model reader behavior, people: Please replicate it widely!) For those interested in more detail on the case, here's the portion of the trial transcript where the court and defense counsel first raise with Mr. Hall a 911 recording that contradicts key witness testimony the prosecution presented to the jury without reservation. Here's the part where Judge Susan Criss tells the jury what happened and issues the directed acquittal. And here's a copy of a deposition of the defense attorney, Jyll Rekoff, providing a detailed account of the events in question and accusing him of similarly withholding a 911 recording from defense counsel in an earlier case. Both the judge and defense attorney in open court said this wasn't the first time Mr. Hall - who was a prosecutor in Brazoria County for ten years before moving to the Galveston DA's office - allegedly failed to disclose evidence in their cases.

As it turns out, the revelation about withheld evidence wasn't due to an extraordinary defense investigation, though the defense attorney in the case seems to have done a good job. Instead, a cop testifying on the stand referred to a witness statement and a 911 recording that had not been turned over to the defense. Defense counsel told the judge she'd never seen those statements and got hold of copies that evening. On the 911 recording the state's star witness - who later picked the defendant out of a photo lineup - said the perpetrators wore ski masks and she couldn't even discern their race. That anyone would even show her a photo lineup after that - much less present the results to a jury without mentioning the 911 call - truly beggars belief.

Part of me would like to think this episode represents a sort of death rattle for behavior from the bad old days. The events took place before Texas implemented improvements to eyewitness ID procedures. And open-file policies mandated in this year's Michael Morton Act should reduce the sort of behavior alleged in Galveston. Over time, those changes should help a lot in similar situations. Moreover, the attitudes of the judge and the state bar are heartening - those who're supposed to exercise oversight did so in this case, or in the case of the state bar, at least tried. Still, my more cynical side accepts that as long as there are competitions there will be people who cheat to win. One can teach ethical behavior but it's more difficult to instill it.

7 comments:

  1. This example is still the type of Brady violation that continues to occur. Police agencies do not as a matter of course send the ADA all they have on a case. They tend to only send what is specifically requested by the ADA once the case is assigned to a court. Typically the ADA will request tbe offense report and forensic results, but not ask for such things as all video, Mobile Data Transmissions, dispatch recordings and other evidence in the hands of the police. Much of this evidence can disappear or be purged under document retention policies if not requested soon enough. In cases where it takes a defendant a couple of court settings to hire an attorney, exculpatory evidence may already have been destroyed because no one requested retention of it in time. In DWI cases scene video is usually sent to the DA without a request, but not always where police know it hurts their case. In drug cases video of the stop, search and arrest are rarely sent without a request and often reveal 4th Amendment violations which the police would rather not have anyone discover. When a defendant does not make bond and is given a court appointed attorney it is typical for that attorney to quickly try to arrange a plea rather than request all of the evidence that the police have not sent over which may contain Brady material. The prosecutors usually turn a blind eye to police not turning over everything they have because if they don't see Brady material and it is not in their "open" file they can then claim they did not know about it (in spite of their duty to ask about it). That is how you end up with an officer testifying about Brady material at a trial that never should have occurred. If this cop was dishonest or the defense had not asked the right question this Brady violation may have gone undetected and an innocent person could easily have been convicted. What is so hard about DAs educating law enforcement to send ALL of the evidence in every case so that it will be in the "open" file and prevent Brady violations? Police should not be making judgment calls on materiality of evidence. The truth is there is a wink and nod relationship between prosecutors and police that says don't send me exculpatory evidence or evidence of illegal searches and seizures and I won't ask for it. This selective turn over of evidence from police to prosecutors while prosecutors pretend it is not happening has got to be stopped by imposing severe sanctions on both police and prosecutors everytime this wink and nod scenario is uncovered. The defense is ENTITLED to exculpatory information without asking for it. Prosecutors by allowing police to just send whatever they want instead of all of their material are inviting Brady violations by police, which is a violation of their duty under due process and the Brady case law. Hey State, clean up your act.

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  2. well sounds like it might be time to make it a law. When a crime is comitted all information and evidence collected will be forwarded to both the DA prosecuting and when selected the Defense Attorney who will defend. Failure to do so will be considered a first degree felony.

    End of any more brady problems and lieing cop problems as well. Unless they are very very good with after the fact paperwork in which case they are going to be hard to catch anyway.

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  3. As I'm ALWAYS having to point out, this nor any other case wouldn't have Brady violations without the complicity of corrupt police officers. Seems Grits always omits this fact. Get rid of the bag-of-shit prosecutor and you've still got useless bag-of-shit cops framing others...

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  4. well 6:56 that's why i said time to make it a law. If the police fail to send EVERYTHING to both the DA and the Defense it's a first degree felony. Lock their asses up. Trust me once a few of them go to prison and the prisoner's administer delayed justice on them. The rest will wise up.

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  5. Plus of course at that point it's no longer a duty of the DA to release the info. It's require by law that the police sent it automatically to the Defense. With a criminal punishment for failure to do it. This would be easier to do legally as the courts staffed by other lawyers continauly shortcut attempts to hold other lawyers accountable.

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  6. We had a good example of how police sometimes use- and misuse- evidence in their hands. When DA Rosemary Lehmberg was busted for that now infamous DWI, APD released every scrap of very unflattering footage they had, and local media ran it continuously for weeks. In the fairly recent past several judges and state legislators have been arrested for DWI, yet APD did not feel the need to release every second of the videos of those folks. Coincidence? Gimme a break. The first to call for her resignation was the Austin Police Officers' Assoc.

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  7. it was the Travis County Sheriff not APD that arrested Lehmberg. there was no video of her driving while intoxicated. only video of her sobriety test and actions after arrest. other than that she was cordial and polite that night. it should be a requirement to immediately release DWI video of elected officials.

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