Monday, July 07, 2014

State bar: 'Just cause' to think prosecutor Charles Sebesta commited misconduct

Charles Sebesta, the former Burleson County District Attorney who withheld evidence in Anthony Graves' 1994 capital murder case, may finally face disciplinary action by the state bar. But regrettably proceedings will be held in secret. Here's Texas Monthly's Pam Colloff describing the latest development:
It’s been eight years since the Fifth Circuit Court of Appeals found that the DA who prosecuted Anthony Graves for capital murder had done something unconscionable : withheld favorable evidence and used false testimony to secure a conviction—a conviction that sent Graves to death row.

Since that federal ruling came down in 2006, granting Graves a retrial, many good things have happened: Anthony was freed from prison in 2010, after all charges against him were dropped; he was formally exonerated by the State of Texas; and he received $1.4 million in compensation for the eighteen years he spent in prison for a crime he did not commit. But the man who secured his 1994 conviction—former Burleson County DA Charles Sebesta— never faced any consequences.  The state bar took no action against him. Even when he continued to impugn Graves’ character, telling Texas newspapers as recently as this January that Graves was guilty of murder,  he did so with impunity.

Finally, last week—twenty years after Graves’ wrongful conviction—the bar took a small but significant step toward ensuring that Sebesta would have to answer for his actions. The bar’s chief disciplinary counsel determined that there was “just cause” to believe that the former prosecutor had engaged in misconduct in Graves’ case. This finding followed a lengthy investigation, which the bar conducted after Graves brought a grievance against Sebesta this March. (Graves was only able to do so because lawmakers recently passed Senate Bill 825, which changed the existing statute of limitations, allowing exonereees to file such grievances with the bar up to four years after their release from prison.)

A legal proceeding will now follow, in which the bar will decide whether or not to dismiss the grievance, or sanction Sebesta. If the bar decides to sanction him, he could receive a punishment as light as a reprimand—essentially a slap on the wrist—or as severe as disbarment.

Though Sebesta has always put great stock in trying people before the court of public opinion—to this day, he continues to insinuate on his website that Graves is a murderer —he has asked that the bar hear his case in a confidential proceeding, rather in than open court. (The bar allows attorneys who are the subject of such grievances to choose whether they will have their cases heard in a district court before a judge or jury, or privately, before a panel of lawyers who serve on the bar’s grievance committee.) “His conduct against Anthony Graves was in a public proceeding and he continues to make public attacks on Mr. Graves,”  said Kathryn Kase, executive director of the Texas Defender Service, a non-profit organization that represents Graves, along with attorneys in the Houston law firm Susman Godfrey. “He should defend his conduct in a public proceeding, for all to see.”

There’s no word yet on when the bar will make its determination about Sebesta. Whether or not the bar will take action at all still remains to be seen. Except for the recent disbarrment of Ken Anderson, the ex-Williamson County D.A. who prosecuted Michael Morton,  the bar’s track record for disciplining prosecutors has been abysmal. From 2004 to 2012, in 91 criminal cases in which the courts decided that Texas prosecutors had committed misconduct, not a single prosecutor was ever disciplined.
For a long time, Sebesta has claimed that the state bar's prior failure to discipline him meant he'd done nothing wrong. (E.g., "Had I withheld evidence in the Graves Trial, ‘sanctions’ would and should have been appropriate. But that did not happen and the State Bar of Texas obviously agreed with their dismissal of the grievance!") But the bar's stated reason for failing to take action was a four-year statute of limitations on older cases. Then, Sen. John Whitmire's SB 825, passed last year, changing the statute of limitations for bar complaints related to withholding exculpatory evidence. Now, exonerees have up to four years after their release to file a complaint, which is the provision that placed Mr. Sebesta in the crosshairs.

Grits would love to have been a fly on the wall when Sebesta received the news about the state bar's latest action. I bet the old man was apoplectic. But I wish the former prosecutor had opted for a public jury trial instead of hashing it out in secret. Charles Sebesta never hesitated to go public with his various allegations and insinuations about Anthony Graves, and what's good for the goose ...

MORE: Find below the jump a press release from the Texas Defender Service on the topic, including a statement from Anthony Graves:
State Bar Has Found Just Cause to Pursue Disciplinary Action Against Prosecutor Who Wrongfully Convicted Anthony Graves

The Chief Disciplinary Counsel of the State Bar of Texas has made a “just cause” determination with respect to allegations of prosecutorial misconduct against former Burleson County District Attorney Charles J. Sebesta, Jr. in his prosecution of Anthony Graves in 1994. As a result of Sebesta’s misconduct, Graves spent 18½ years of his life in prison, more than 12½ years of that on death row, for a crime he did not commit and of which he was later completely exonerated by honest prosecutors.  

Mr. Sebesta has elected to have his case heard by an administrative judge. That means the State Bar grievance proceeding will stay confidential until a final determination is made and any sanction is imposed. If Mr. Sebesta had elected to have the case heard by a state district court, the case would have become public when the Office of Disciplinary Counsel filed its complaint against Mr. Sebesta. 
Anthony Graves twice faced execution dates during his incarceration. He filed his grievance against Mr. Sebesta on January 20, 2014. During the State Bar’s initial investigation, Mr. Graves also submitted an affidavit detailing how Sebesta’s unethical prosecutorial misconduct forever changed Graves’s life and the lives of those around him. A copy of that affidavit is provided with this announcement.  

The State Bar of Texas has power to sanction Charles Sebesta for his unethical conduct, up to and including disbarment and loss of his license to practice law in Texas. 

Statement by Anthony Graves:  “Twenty years of being victimized by Charles Sebesta is enough. I never should have been on death row, much less for 12½ years of my life. The courts and the State of Texas finally agreed, and acknowledged that I am completely innocent. Mr. Sebesta thinks he can just ignore all that and keep claiming that I am a murderer. He continues to assassinate my character, forcing me to explain myself and to defend myself. That is not right—an honest prosecutor admitted that I am completely innocent, and the State of Texas agreed. I am not a lawyer, but I believe that any lawyer who doesn’t believe in the presumption of innocence—much less an absolute and incontestable finding of innocence as happened in my case—doesn’t deserve to be a lawyer in our great State. 

“I sought justice for a long time while imprisoned, having to trust the court system and the legal profession to care about justice, and to do the right thing. I am glad to see the State Bar of Texas now act favorably on my grievance at this stage. I am confident that the Bar will discipline Mr. Sebesta for his misconduct and do whatever it can to stop him from continuing to persecute me, a completely innocent man.”   

Statement by Kathryn Kase, Executive Director, Texas Defender Service, and Counsel to Anthony Graves:  “We are pleased that the State Bar of Texas has determined that there is just cause to proceed against Charles Sebesta with regard to his conduct in the prosecution of Anthony Graves. Eight years ago, a federal appeals court determined that Anthony Graves was convicted in an unfair trial because Sebesta did not inform Mr. Graves’s counsel that the State’s main witness took full responsibility for the murder, and because Sebesta knowingly presented false and misleading testimony and information during Mr. Graves’s death penalty trial. Rather than try Mr. Graves again, honest prosecutors determined he was actually innocent of the crime and asked the State to release him. Not only did the State declare him completely innocent, it paid him some compensation for the wrongful conviction and imprisonment. By that point, Anthony Graves had spent 18½ years behind bars, 12½ of them on death row.  

“As yet unresolved is whether this rogue prosecutor will be held accountable for his violations of law, ethical misconduct, and breaches of the public trust. Texas citizens deserve to be represented by zealous prosecutors, but only those who follow the rule of law, and who respect the presumption of innocence. A prosecutor’s duty is not simply to secure convictions, but to see that justice is done. Conviction of an innocent man like Mr. Graves through prosecutorial misconduct is abhorrent and undermines public trust and confidence in the Texas justice system. The way to restore that trust and confidence is to hold prosecutors like Charles Sebesta accountable when they violate their legal and ethical obligations.

“We are disappointed that Mr. Sebesta chose to have the Bar’s action against him proceed before an administrative judge, rather than before a court of public record. His conduct against Anthony Graves was in a public proceeding, and he continues to make public attacks on Mr. Graves. He should have defended his conduct in a public proceeding, for all to see. Regardless, Texas Defender Service will continue to assist both Anthony Graves and the Bar as Mr. Graves seeks this last measure of justice.” 


Lee said...

I am confused about something. How does the recent change in law effect Sebesta's case without violating the concept of "ex post facto"? The "ex post facto" was put in place to protect the people form the government changing the rules as they go along. Sabesta should only be held accountable to the laws and limitations statutes that were in place at the time of the alleged misconduct. Any lawyers care to clarify?

Gritsforbreakfast said...

Lee, IANAL and I don't know the legal answer to your question. But FWIW, Sebesta is not accused of a crime but with violating state bar rules. Though regulated by the state, the state bar is a private professional association like, say, the AMA. It's possible that distinction explains the reason. Clearly the state bar doesn't consider the ex post facto issue a barrier.

Lee said...

I still do not understand how it is fair for the legislature to change the rules as you go along.

gravyrug said...

The fact that Sebesta continues to publicly call Graves a murderer should constitute slander, and be treated as such, in addition to whatever penalties the state bar enacts.

Anonymous said...

I'm not a lawyer so perhaps one could chime in. I understand that the US Supreme Court has ruled that extending the statute of limitations does not violate ex post facto. Sexual offenses such as child molestation have had the statute of limitations extended and people sent to jail years later.

George said...

@Lee, IMO, prosecutors and other government officials who intentionally misuse the immense power of their office should not be subject to the same constitutional rights as the citizens under their control. They have taken an oath to uphold and protect the constitution.

I'm willing to bet that Sebesta and Ken Anderson are just the tip of the iceberg when it comes to misconduct, and I think misconduct is describing it mildly. Knowingly, willingly and intentionally withholding evidence in a criminal case is something that should never have a statute of limitations attached to it. These detestable slugs should rot in prison for what they have done.

It is time for decent and honorable people to stand up and let their voices be heard and to send a message to the self-serving bastards that continue to conduct their offices in this manner.

Big Tex said...

RE: "I still do not understand how it is fair for the legislature to change the rules as you go along"

It wasn't "fair" that Sebesta framed Anthony Graves, either. "Fair" is a place where they judge pigs. The closest thing you'll get to "fair" in Texas is in Dallas in October.

Lee said...

Perhaps a lawyer could clarify?

Jennifer Laurin said...

The ex post facto clause of the US Constitution has been interpreted as applying only to legislation involving crimes and criminal punishments. State Bar proceedings are civil.

Lee said...

I am confused then...was the action taken against Ken Anderson civil or criminal? The handcuffs, mugshot & jailtime indicate criminal. How would the action against Charles Sabesta be any different?

Gritsforbreakfast said...

"was the action taken against Ken Anderson civil or criminal? "

The answer is "both." There were criminal charges and the state bar went after his license on the civil side.

In this case, it's the state bar taking action against Sebesta, not the Sheriff or DA. Anderson was charged with evidence tampering and criminal contempt. In Sebesta's case, the state bar is attempting to discipline him. No criminal charges have been filed.

Anderson also lost his law license, btw, but that was separate from the criminal charges.

Thomas R. Griffith said...

Grits, if I may?

Folks please take time to allow the following excerpt to sink in and then consider what George suggests vs. heads back in the sand. Call someone that wishes to represent your state and ask 'em if they have a plan to address in-house fake disciplinary actions where the maximum punishment is being jumped out of the gang.

"...the bar’s track record for disciplining prosecutors has been abysmal. From 2004 to 2012, in 91 criminal cases in which the courts decided that Texas prosecutors had committed misconduct, not a single prosecutor was ever disciplined."

When we the people, allowed lawyers and police to prosecute & spank themselves, we simply allowed lawyers & police to prosecute & spank themselves. Same goes for allowing them to place limitations on catching the rogue & bad that walks among them. And for that, we deserve what we got & get. Sebasta is a piece of shit and deserves to do hard time, not simply Tee Time with the boyz over a game of slap ass. We need a lobbyist to take Austin to task via getting some emergency bills rolling aimed at eliminating self-imposed frat style corrections systems rigged to make it appear as if something is being done. Maybe Mr. Graves will be the one to make it so. I'll help him or anyone else that dares to enact positive change.

As it is, it's nothing but bullshit, when verifiable criminal activity is classified as Misconduct by lawyers when committed by lawyers and as felonies when committed by ordinary citizens. Grits, is 100% correct - "what's good for the goose ..." Thanks.

Anonymous said...

Sebesta could always head to the Republic of Palau. I hear they hire miscreant and unethical lawyers.

Anonymous said...

I think the answer to the whole "ex post facto" issue is this: The behavior we are talking about was criminal at the time it was done. The legislature has not created a new law criminalizing something that was not a crime at the time. The legislature has merely extended the statute of limitations. The reason for not allowing ex post facto laws is that a person should not be charged with a crime when the act was not a crime at the time it was committed. However, if it was crime at the time, the person would have been on notice as such and therefore it is not unfair to prosecute that person. Its merely a matter of time of extending the time frame for which the prosecution may commence. I don't think that is really unfair. If it was a crime at the time (subornation of perjury, abuse of official capacity, federal criminal civil rights violations, etc) and the prosecutor made a concious decision to engage in criminal behavior, he can't complain when he is prosecutred. Nothing unfair about that, is there?

Lee said...

The statute of limitations is a detail of law that defines when misconduct may be prosecuted. I am saying that he should only be held to only the details of the law that was in place at the time of the alleged misconduct.

Anonymous said...

I'm sure other licensed professionals in Texas would like to be given the option of having their licensing boards investigate and proceed in secret. And I know physicians don't have the option of taking their cases straight to a court. Medical licensure cases can be appealed, but the board does not have to adhere to the court's ruling. (What good is that?)

So, there is a double standard here in Texas: lawyers and judges vs. every other type of professional. That's why these prosecutors can literally get away with "murder" (by withholding exculpatory in capital trials).

I'd say it's time to start prosecuting the prosecutors, but who's going to do it? Other prosecutors? And how often do you see a judge form a court of inquiry when stuff like this happens?

I can't think of a good solution to this problem. We just need to keep the pressure on by exposing corrupt prosecutors and judges everwhere and hope the voters in their jurisictions get scared enough of them to vote them out of office.

Anonymous said...

Lee, would you also say that when legislatures extend the statute of limitations so that pharmaceutical companies who made dangerous drugs could be sued was unfair? It is not at all unusual for changes in procedural laws to be applied retroactively. A statute of limitations does not give a person a right not to be prosecuted. It is a procedural rule that can be changed and applied retroactively without violating the Constitution. Its only when a new law is enacted making something criminal that wasn't at the time that you would have an ex post facto problem. Would you feel the same if the legislature extended the statute of limitations for a drug dealer? Would you argue that was unfair?

Lee said...

I am saying that one is held to account to only the laws and even the procedures that were in place at the time. From the perspective of the defense (because any one of us could find ourselves in the hotseat) Sabesta could not predict that the legislature would go and change the statute of limitations so now he could be prosecuted. Yes I would argue that changes in minor details of legal procedure should not apply retroactively because that is just changing the rules as you go along. An example is when Dennis Rader (BTK serial killer) was caught, he could not be given the death penalty because when his crimes were committed there was no death penalty on the books. Prosecutors had to go back and look at the laws that were in place in the 1970s and prosecute him according to those laws.

I do question the accuracy of your statement "A statute of limitations does not give a person a right not to be prosecuted" because it is a defense and protection against prosecution.

It was put in place to answer how long can the government hold something over you head? How far back in history does the state want to dig and resurrect your transgressions? It also serves as a clock to keep the prosecutors and police on their toes to solve crimes quickly and professionally.

Also when Sabesta committed the misconduct against Graves, the Michael Morton act was not in place. Unless he perjured himself in the way that Anderson did (where he directly lied to the judge about the evidence) I don't see Sabesta violating any written statutes (moral and ethical obligations of being a descent human being are obviously another issue). He did go against the SCOTUS ruling provided in Brady v. Maryland but that is a SCOTUS opinion not a legal statute enacted by a legislative body.

Again it is important that the defense be given a fair shake regardless of whom the defendant is because it could easily be me or one of us in that seat.

Anonymous said...

Lee, come on now. Sebesta knowingly sponsored perjured testimony of the Texas Ranger. Is that not crime in your opinion? Was it not a crime at the time? What about abuse of official capacity? Violation of civil rights is a federal crime? Sebesta violated multiple criminal laws. There are laws such as abuse of official capacity that would encompass Brady violations. I also disagree with your contention that a statute of limitations creates a right to not be prosecuted It defines the time by which a prosecution must commence and its a procedural issue. A lot of changes in the law are applied retroactively with no constitutional violation. If you want to talk about fairness, why should Sebesta have been able to willfully commit crimes and escape punishement by keeping his victim in prison while the statute of limitations expired? Is that fair? When a prosecutor engages in misconduct it will often be a crime (just because other prosecutors wont prosecute it doesn't mean its not criminal). When that prosecutor make a conscience decision to do those things he has no right to expect not to be held accountable.

Anonymous said...

Lee, suborning perjury has been illegal for a while. And the Constitution has been in place since 1789, Brady for decades.

The post-conviction proceures are new (and still developing), but the underlying laws were there to prosecute Sebesta.

Lee said...

Please do not misconstrue my comments as having sympathy for Sabesta or anyone that corrupts justice. Even though he is scum of the earth he should still face fair justice in a courtroom even though he has denied that same right to others.

I only mention that the state seems to be changing the rules as we go along and applying those changes retroactively seems unfair to any defendant.

As unfair as Sabesta's and Anderson's transgressions were, they do not justify our own.

Anonymous said...

The Delma Banks case, which resulted in a reprieve 10 minutes before execution, is similar. The Prosecution used two witnesses who have recanted and the ruling by J Ginsburg noted that "prosecutor may hide, defendant must seek is not tenable in a system constitutionally bound to accord defendants due process. Ordinarily we presume that public officials have properly discharged their public duties." In other words, it is incumbent on the government to be truthful and Sebesta has a huge mountain to climb to prove that he acted properly in his pursuit of Graves.