Interference with SCFO attorneys demands investigation

Grits had earlier discussed the new report from a state bar committee critical of the State Counsel for Offenders, the Texas Department of Criminal Justice division charged with providing legal services to Texas prison inmates. (See coverage from the Texas Observer and KWTX.) So I wanted to pull out a segment from our most recent Reasonably Suspicious podcast discussing the topic in more detail:


Allegations by attorneys in the report that TDCJ interfered to prevent deployment of particular legal strategies should be investigated by the state bar or perhaps a legislative oversight committee, at a minimum. Indeed, if that's going on - and it sounds like it's happening writ large in the civil-commitment division - then it's time to question, as my co-host Mandy Marzullo suggested during the segment, whether the SCFO is structured in a way that allows for the ethical handling of defense cases. That shouldn't be happening.

Charles Sebesta disbarred!

BREAKING: Charles Sebesta, the prosecutor who withheld exculpatory evidence at Anthony Graves' capital murder trial, has been disbarred after a private trial vs. the state bar's disciplinary counsel, reported Pam Colloff on Twitter.

Here's a copy of the judgment. See related Grits coverage.

MORE: See Pam Colloff's initial coverage from Texas Monthly. See coverage from the Texas Tribune and the Houston Chronicle.

The case for punishing prosecutor misconduct

At Texas Monthly, Pam Colloff yesterday made "the case for punishing prosecutors who abuse their power," focusing on the Hannah Overton, Michael Morton and Anthony Graves cases. She also highlighted a case that's gotten less attention:

Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.

Colloff suggested the State Bar of Texas must "radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist."

She also recommended that, "the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar."

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:

Former prosecutor, now a judge, discplined by state bar for role in texting scandal

More fallout from the Polk County case where Judge Elizabeth Coker was caught texting suggested questions for witnesses to the prosecution team in criminal cases during trial. In the latest episode,  then-prosecutor, now District Judge Kaycee Jones was the target of the state bar's public disapprobation, receiving one of the state bar's rare public reprimands for exchanging texts with Judge Coker and relaying them to the first chair. Via the Houston Chronicle ("State bar reprimands former prosecutor in texting scandal," May 27):

The Texas Bar Association has issued a public reprimand to state district Judge Kaycee Jones for her role in clandestine texting during a criminal trial while she was a prosecutor and before her election to the bench last year.

Jones, who oversees the 411th court in Polk, Trinity and San Jacinto counties, signed the agreed judgement citing her for "professional misconduct" just before she came in front of the bar's grievance panel for a hearing this month.

Jones, 39, was an assistant Polk County prosecutor for 11 years before becoming a judge in 2013. ...

The agreed judgment documented how Jones had received text messages from state district Judge Elizabeth Coker, while she was seated on the bench during a trial in a child injury case.

Jones, then an assistant prosecutor and observer during the trial, wrote down the message that suggested a line of questioning to bolster the prosecution's case and relayed it to the lead prosecutor.

The improper communication violated the "ex parte rule" which forbids judges, who must remain impartial arbiters, from communicating about a case unless both sides are present. ...

An ethics expert at South Texas College of Law, Jim Alfini, also said the state bar's action was a mere slap on the wrist for a serious violation.

"Jones was an admitted accomplice to a serious judicial ethics violation," he said. "They went very easy on her. I could imagine a much more severe sanction."

But judicial ethics expert and author Lillian Hardwick said Jones will not come through this unscathed as she will be required to disclose the reprimand on her bar record for the next 10 years.

Now that the state bar has publicly spoken, one wonders if the State Commission on Judicial Conduct will follow up to evaluate Judge Jones' fitness to serve on the bench?

CCA: 'Reckless,' 'negligent' prosecutors don't merit sanction by courts

The prosecutors association's weekly case summary from last week includes this summary of a new case from the Texas Court of Criminal Appeals which affirmed a judge's decision not to exclude physical evidence withheld from the defense before trial:

Francis v. State

No. PD-0519-13                     4/30/14

Issue:
Did the prosecutor willfully violate a pre-trial discovery order requiring inspection of all physical evidence when, on the first day of trial, she revealed to defense counsel a machete to be entered into evidence when all the information previously available to the defense indicated only a small knife was alleged as a deadly weapon? 

Holding:
No, but only because the trial court didn’t see it that way, and the Court of Criminal Appeals concluded that under these facts, almost absolute deference was owed to the trial court’s implicit conclusion that the prosecutor’s conduct was less than willful. The opinion notes that under the same facts, the trial court could also have found the prosecutor’s actions to be willful and suppressed the evidence. Read the opinion. 

Notably, Judge Tom Price opined in the main ruling that, "Because exclusion of evidence in this context is in the nature of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should exclude evidence on this basis has been made to hinge on "whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.] Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding evidence." 

Indeed, according to the opinion, "the trial court could rationally have concluded that, despite her protestations to the contrary, the prosecutor's behavior constituted 'a calculated effort to frustrate the defense' ... But the trial court was not obliged to draw that conclusion" since her conduct "may have been only reckless, or merely negligent," and the CCA held that "we owe almost absolute deference to the trial court's implicit conclusion that the prosecutor's conduct was less than willful."

Nowhere in the appellate record are we told the name of the prosecutor in question who was either "negligent," "reckless," or in the opinion of Justice Evelyn Keyes from the First Court of Appeals, guilty of willful misconduct. In her dissenting opinion from the First Court, Keyes said she would have held the prosecutor's conduct to be "willful" and excluded the machete as evidence. Keyes noted that:

(1) the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas’s medical records related to the robbery; (2) the machete’s existence came to light only after defense counsel observed the machete among the State’s exhibits at trial, not as a result of any voluntary act by the prosecutor; (3) the State had possession of the machete for more than one month prior to trial; and (4) the State failed to disclose other evidence it introduced ― threatening telephone calls Francis made to Thomas while in custody―in violation of the discovery order.

Based on that, she concluded, "I would hold that in failing to disclose the existence of the machete in its possession and Thomas’s statement about its use in the course of Francis’s assault on her, the State acted voluntarily and with the specific intent to violate the trial court’s discovery order." The CCA, though, unanimously disagreed, saying that the judge's interpretation trumped the cited evidence.

I find myself wishing once again that appellate courts would name prosecutors when a judge issues an opinion that they willfully withheld evidence or even were "reckless" or "negligent," which seems to be the array of options presented in these two appellate reviews. Indeed, I can't even tell the prosecutor's name from the online information about the case at the trial court level. One reason prosecutors aren't more often held accountable - by the state bar or anybody else - is that nobody but insiders can tell when courts find they've been "reckless," "negligent," or engaged in misconduct. And I'm sure the Harris County DA won't discipline the prosecutor in this circumstance - they'll just call the case a "win" and move on.

UPDATE: In the comments, the defense attorney in the case confirmed that "The trial prosecutor was Gretchen Flader. The presiding judge was Mike Anderson (visiting judge for Marc Carter)."

Graves: State bar should discipline Charles Sebesta

Now that the Texas Legislature has extended the statute of limitations for the state bar to discipline prosecutors, exoneree Anthony Graves wants former Burleson County District Attorney Charles Sebesta to face discipline for withholding exculpatory evidence in the trial that sent him to death row. See coverage from:

• Texas Monthly
• Houston Chronicle
• Texas Tribune
• Austin Chronicle
• Bryan/College Station Eagle 

On the phenomenology of Maverick Ray and the worthlessness of Texas capital qualifications

Mark Bennett recently called out a newbie solo criminal defense attorney named Maverick Ray for "deceptive" advertising on his website, trashing his questionable claims of experience and gravitas:

The cal­low­est young lawyer puts up a web­site in which he calls him­self “The Law Offices of Mav­er­ick Ray” (he has one office), “An Expe­ri­enced Hous­ton Sex Crimes Lawyer Your Free­dom Can Depend On” (he has been licensed for less than eight months and been hired on one felony sex case), “the Assas­sin of Sup­pres­sion” (Har­ris County records show no granted sup­pres­sion motions in drug cases), “Houston’s pre­mier DWI Attor­ney” (I won­der what Gary Trichter or Troy McK­in­ney, or Lewis Dick­son, to name but three of Houston’s top DWI lawyers, with decades of expe­ri­ence each—[edit: not to men­tion Tyler Flood]—would have to say about that), “often opt­ing to let a jury deter­mine whether some­one was truly intox­i­cated rather than the highly flawed Field Sobri­ety Tests, Breath Tests, or Blood Tests” (Dis­trict Clerk records do not show him try­ing a sin­gle DWI case in Har­ris County dur­ing those eight months).

Grits thought Mark was being a bit harsh on the youngster until he followed up with this post pointing out that Mr. Ray, though fresh out of law school, has been hired to represent a capital murder defendant in Walker County, where Bennett points out, “Huntsville is the county seat; think 'juries packed with prison guards and their families.'”

I cannot fathom the hubris required for such an inexperienced attorney to take on DA David Weeks, in Huntsville, in a capital murder case. Mr. Ray is gonna get creamed (as he did at a recent bail reduction hearing), and his client will be lucky if he doesn't wind up with a needle in his arm. The judge "had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel."

Mr. Ray's story is as much an example of the utter and complete failure of the State Bar of Texas to regulate its members as it is of one young attorney's over-inflated self esteem. When Bennett contacted Ray about misleading claims on his website, he responded, “What do you mean decep­tive? It was approved by Texas Bar and is no dif­fer­ent than count­less other attor­neys websites.” Indeed, that's the real problem, isn't it? State bar approval of web advertising by lawyers is utterly meaningless if this example makes the cut.

Similarly, and more gravely, this example shows more stringent strictures are needed regarding who can represent capital murder defendants. A recent, detailed report (pdf) by the American Bar Association's Texas Capital Punishment Assessment Team recommended that:

Texas must better ensure that appointed counsel possess the knowledge and skills necessary to meet the uniquely complex and demanding challenges of capital representation. Texas should adopt statewide qualification standards that include an assessment of the applicant’s knowledge, skills, and commitment to zealous advocacy as set fort in ABA Guidelines and the State Bar of Texas’s Guidelines and Standards for Texas Capital Counsel. Texas should empower regional or county authorities to make selection and evaluation determinations with respect to list qualified appointed counsel. As with the appointing authorities established in other capital jurisdictions, these local authorities should be comprised of individuals with demonstrated knowledge and expertise in capital representation, and their membership should be, to the extent possible, independent of the elected judiciary.

Attention also must be paid to monitoring the performance of capital counsel. What constitutes tolerable attorney competency in a non-capital case may be fatal in the capital context. To this end, Texas must adopt performance standards for capital counsel, with particular emphasis on required training and acceptable attorney workloads. Finally, Texas must implement mechanisms for monitoring the performance of list-qualified appointed counsel.

Ironically, if the defendant were indigent, he'd be entitled to a better lawyer. Art. 26.052 of the Code of Criminal Procedure insists that lead counsel in capital cases must "have at least five years of criminal law experience," they must "have tried to a verdict as lead defense counsel a significant number of felony cases, including homicide trials and other trials for offenses punishable as second or first degree felonies or capital felonies," they must have "trial experience" in "the use of and challenges to mental health or forensic expert witnesses and investigating and presenting mitigating evidence at the penalty phase of a death penalty trial," and they must have "participated in continuing legal education courses or other training relating to criminal defense in death penalty cases." Why shouldn't the state bar require similar standards for retained counsel in capital cases? And if they won't, shouldn't the Legislature step in to do so?

This blog has criticized the state bar for its failure to discipline prosecutors who commit Brady violations, but the truth is they're hardly regulating anybody. Their failures embodied in Bennett's first post are pathetic. Those in the second are profoundly disgraceful and bother me a lot more than does one young lawyer's ham-handed chutzpah.

had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel - See more at: http://www.itemonline.com/local/x520093163/Reduced-bail-for-murder-suspect-denied#sthash.GRPBsaID.dpuf

had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel - See more at: http://www.itemonline.com/local/x520093163/Reduced-bail-for-murder-suspect-denied#sthash.GRPBsaID.dpuf

Former prosecutor, now a judge, embroiled in Elizabeth Coker texting scandal

Following Polk County District Judge Elizabeth Coker's resignation in the wake of revelations that she'd texted advice to prosecutors during trials, the prosecutor in the watershed case, Kaycee Jones, who was since elected to a judgeship, also finds herself in hot water, AP reported Oct. 23. In a letter to the state bar's disciplinary counsel:

From the 'Too Little, Too Late Department': Judge Ken Anderson resigns

District Judge Ken Anderson, who as Williamson County District Attorney prosecuted Michael Morton in the 1980s, allegedly withholding exculpatory evidence from the defense, has finally, formally resigned, Brandi Grissom reported at the Texas Tribune. Apparently the move was prompted by his looming trial date next week regarding a "complaint from the State Bar of Texas that could end with Anderson's license to practice law being revoked over the Morton matter. That hearing remains scheduled regardless of Anderson's resignation," reported KXAN-TV.

Grits must admit, I thought Judge Anderson would ride this out til the bitter end. He seemed to care little about the disgrace he brought to the office and has never admitted the least culpability in Michael Morton's false conviction. Perhaps his resignation tells us the man isn't completely shameless, or perhaps he was just backed into a corner.

MORE: See Texas Monthly's Pam Colloff's take, "Why Michael Morton's prosecutor finally resigned." Her piece concluded:

No one’s talking right now about what may, or may not, be going on behind the scenes. But on Wednesday, WilcoOnline.com posted a story—which has since disappeared—citing “unconfirmed sources” who said that Anderson has worked out a deal in which he would surrender his law license and spend ten days in jail in exchange for the dismissal of both the criminal and civil cases against him. No word on whether these “unconfirmed sources” are reliable or not.

Whatever happens, it’s an ignoble ending for the man who the Texas bar once named “Prosecutor of the Year.” Anderson, once a well-respected member of the community, had recently set his sights on obtaining an appointment to the Court of Criminal Appeals. Now, even if he somehow avoids standing trial, it may not be the end of his troubles. This week, state Senator Rodney Ellis  told Brandi Grissom at the  Texas Tribune  that he hoped local officials would review additional cases that Anderson had prosecuted in the past to see if there had been other “miscarriages of justice.”

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.

'Brady' violation resulted in directed acquittal but failed to garner state-bar sanction

The Houston Chronicle brings word of a remarkable case of prosecutors allegedly woodshedding an eyewitness and withholding exculpatory evidence ("Innocent Texas City man wants $3 million after 10 months in jail," July 15). The conduct was so egregious the judge ordered a directed verdict in favor of the defendant. Robert Stanton's story opened:

A Texas City man who spent 10 months in jail for a crime he did not commit has filed a $3 million federal lawsuit against officials in Galveston County and Texas City.

Joshua Bledsoe was released from custody in June 2011, when state District Judge Susan Criss issued a direct verdict in his favor. The acquittal was ordered on grounds that former Assistant District Attorney Jon Hall and the DA's Office withheld exculpatory evidence, according to the lawsuit filed Feb. 21, 2013.

A directed acquittal specifically because of concealing exculpatory evidence is a rare bird indeed, in part because evidence concealed isn't available at trial to contradict the prosecution's case. It's usually discovered long after the fact when the damage has been done. Bledsoe's attorney must have done a fine investigation to pull that out of a hat. Here are the specifics of the alleged Brady violation, again from the Chronicle:

According to the original petition, Bledsoe's attorney Taft L. Foley II obtained a 911 tape with eyewitness Tina Mullins, who told the dispatcher that the suspects were wearing ski masks. She later identified Bledsoe in a photographic lineup.

The lawsuit charges that Texas City police and the DA's Office pressured Mullins into identifying Bledsoe. Mullins is not a party to the lawsuit.

"The defendants deliberately and maliciously caused the prosecution to commence by deliberately and intentionally fabricating some evidence, by deliberately and intentionally withholding some critical favorable evidence and by deliberately and intentionally mischaracterizing some critical evidence in their possession, custody and control," the lawsuit states.

Where's the state bar on this, one wonders? The directed acquittal two years ago specifically based on grounds of withholding exculpatory evidence ought to make the disciplinary committee's job pretty easy, but according to the state bar website Jon Hall has never been sanctioned.

UPDATE: More on this case.

Open-file bill named for Michael Morton scheduled for Monday floor vote in TX House

The one-sided criminal discovery bill requiring open files of prosecutors - SB 1611 by Duncan/Ellis, the so-called "Michael Morton Act," carried in the House by Rep. Senfronia Thompson - has been set for a vote on the floor of the Texas House of Representatives on Monday. A couple of prosecutors opposed the bill in committee and some of the same folks have been grousing about it online. But that didn't stop the House Judiciary and Civil Jurisprudence Committee from recommending it unanimously. For the most part, the DAs have reined in most of the usual critics and the Harris County DA's decision to support the bill went a long way toward dispelling allegations that it's soft on crime. Without question, this is the most significant criminal-justice legislation of the 83rd Texas Legislature.

Also up on Monday's House floor calendar: SB 825 by Whitmire eliminating secret "private" sanctions by the state bar for sustained grievances against prosecutors for Brady violations. This bill was also pitched as an homage to Michael Morton so one would expect the man of the season to be on hand for the festivities.

Grits had earlier recommended both these bills for speedy passage so I'm glad to see them prioritized.

MORE (May 12): See Brandi Grissom's preview of Monday's vote from the Texas Tribune, including a conversation with the attorney who argued Brady v. Maryland (he lost the case but SCOTUS created the rule) and Barry Scheck of the national Innocence Project.

State bar accuses Ken Anderson of misconduct in Michael Morton case

The folks at the State Bar must be feeling the heat because they've taken the rare step of recommending discipline against former Williamson County DA, now District Judge Ken Anderson, more than 20 years after the alleged Brady violations in the Michael Morton case. Reported the Texas Tribune's Brandi Grissom:

The State Bar conducted a 10-month investigation after a grievance was filed against Anderson in the case. The State Bar’s Commission for Lawyer Discipline wrote in its court filing that Anderson knew of the evidence and withheld it. The filing also alleges that Anderson made a false statement to the court when he told the judge he had no evidence that could be favorable to Morton’s claims of innocence.

His conduct, the State Bar commission wrote, violated five of the state’s Disciplinary Rules of Professional Conduct.

Anderson is expected to file a response to the lawsuit by Nov. 5. He can choose between a civil jury trial or a bench trial in which a judge will hear the case. If Anderson’s conduct is found to constitute professional misconduct, the judge will impose sanctions, which could include a public reprimand, probated suspension of his law license, active suspension of his law license, or disbarment. The judge could also force Anderson to pay the attorneys' fees of the State Bar commission.

The Texas Supreme Court has appointed state District Judge Kelly G. Moore of Terry and Yoakum counties to preside over the case in Williamson County.

What an unexpected development. Here's a link to the state bar's disciplinary case (pdf) against Anderson. Perhaps the discussion of legislative remedies spurred the state bar into action, or maybe it was the national media. Terry McEachern of the Tulia case is the only other prosecutor sanctioned in recent memory, and he, like Anderson, prosecuted a botched case that ended up on 60 Minutes.

In any event, the court of inquiry regarding Anderson's alleged prosecutorial misconduct has been pushed back until December, and this state bar lawsuit against Judge Anderson only heightens the tension surrounding those unhappy proceedings.

RELATED: See Part One of Texas Monthly Pam Colloff's massive article on the Michael Morton case titled "The Innocent Man." The second half will be published in the December issue.

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.

State bar dismisses Bradley grievance, receives new one, election looming

Continuing its de facto policy of virtually never disciplining prosecutors for alleged on-the-job misconduct, the state bar dismissed a complaint against Williamson County District Attorney John Bradley this week over the Michael Morton case, reports the Austin Statesman: The state bar's board of disciplinary appeals "reviewed the complaint as filed, taking no additional information, and determined that the accusations did not allege any violations of the Texas Disciplinary Rules of Professional Conduct, the ethics rules for lawyers, the letter said." Bradley had been accused of improperly delaying DNA testing and fighting to conceal exculpatory evidence being turned over to Morton's legal team.

Now the focus in the Morton case shifts to District Judge Ken Anderson. The court of inquiry to measure his culpability will take place September 11 in Georgetown: Be there or be square!

One of the problems with the state bar's reticence to discipline prosecutors is that even when complaints are dismissed, that does little to reassure the public that all is well. It's hard at this point to believe the bar would enforce rules for prosecutors in any event. Maybe it's true no violations occurred, but it's difficult for the public to have confidence in that judgment.

The dismissal, though, doesn't necessarily mean scrutiny has ended for Mr. Bradley. Your News Now Austin reports that another complaint has been filed against him alleging "the actions of Bradley and others on the state's Forensic Science Commission, resulted in a failure to properly investigate his previous complaints of negligence and misconduct at the Dallas County crime lab, Southwestern Institute of Forensic Science."

Reacting to the latest complaint, the Wilco Watchdog commented:

Bradley is now in permanent "no comment" mode. For the past month, he has failed to comment when pressed by the media to explain his false statements against the Cedar Park Police Association and other issues surrounding his application to become board certified in criminal appellate law. Since Bradley feels he is not accountable to the public and provide answers to questions regarding misconduct, on May 29th, the public can hold him accountable at the ballot box. Until then, expect more dodgeball.

As the Watchdog notes, there's a much better chance voters will hold Bradley accountable than the state bar. Time will tell.

Blackwell: Texas State Bar 'not set up to oversee prosecutors'

The Dallas Observer has an interview with Austin attorney Betty Blackwell who is a recent, former chair of the state bar disciplinary committee and participated on a panel discussion Thursday at the UT law school on prosecutorial oversight. These answers, I thought, were particularly enlightening:

Have you seen awareness of prosecutorial misconduct change over the years?

\I will tell you DNA and the fabulous work done by the Dallas D.A.'s office has really brought this to the forefront because Dallas was so conscientious about saving all of its biological material that its office has had the most exonerations. It has really come very much to the forefront that there are innocent people in prison.

Why is it that almost no prosecutors are disciplined for procedural errors or withholding evidence?

It's because the State Bar system is set up on a complaint-driven system. And one of the things we talked about at that symposium yesterday was getting judges to file complaints when they see this, getting prosecutors in their own office to file complaints against people in their own office that they've seen do this, would help the State Bar discipline these people.

And then the other issue as to why people haven't been disciplined, particularly about Brady violations, is that there is a four-year statute of limitations on all grievances. Brady never gets discovered within that four year period. So if you go online and look at Anthony Graves exoneration, and Charles Sebesta has a website -- he's the D.A. that convicted Anthony and put him on death row even though he was totally innocent. Charles Sebesta holds up the letter from the State Bar saying that they exonerated him. Well, you can read the letter. It says the statute of limitations has expired. And that's the issue. Most of these complaints on Brady cannot be brought to the Bar in a timely manner.

And so, one of the suggestions is to eliminate that statute of limitations so that the Bar can investigate these cases even though it's been many many years since it happened. There should be no statute of limitations.

She added that "the State Bar is really not set up to oversee prosecutors because we have to receive complaints in a timely manner. Well, the Bar Association can suspend these lawyers if they violate Brady -- well, not if they're not told about it, and not if they're not told about it within the statute of limitations. So they [yesterday's speakers] brought those [issues] to the public, to say the Supreme Court relied on some safeguards that are just not working."

Of Connick v. Thompson she opined that "We all believe that's an unjust opinion."

See the full interview for more.

Study: Prosecutor misconduct in Texas rarely disciplined

The Texas Tribune has published some of the preliminary data from a report to be released later today (at the forum previewed by Grits below) analyzing Texas cases where appellate courts identified examples of prosecutorial misconduct but the state bar failed to discipline the attorneys. The item by Brandi Grisssom opens:

In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states. ...

In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.

The McEachern case is certainly the only example I know of where a prosecutor has been disciplined by the state bar since I've been paying attention to such things (the actions that led to his probated suspension took place well before the study period), so I'm not surprised this research turned up no others. Those 91 cases, too, are just a sample identified from 2004-2008, Grits was told by one the study's collaborators, and not a comprehensive list. As Prof. Laurin pointed out, the research "explores documented court findings of prosecutorial error and there are many ways in which documented court findings, to the extent they’re publicly available, are not great ways of getting at ... how widespread of a problem there is." Still, it's notable if unsurprising that the state bar took action in none of the 91 cases identified during the period studied.

MORE: Find an excerpt from the press release below the jump:

As predicted: State bar dismisses grievance against John Bradley from Morton case

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton's false conviction, a development the Austin Statesman reported today. Except ... oh yeah ... Grits predicted earlier the state bar "almost certainly" wouldn't do anything. As pointed out then, "The State Bar didn't even discipline a [former] DA or judge from Collin County after the prosecutor admitted in a deposition they'd been sleeping together during a capital murder trial." If that won't get a prosecutor sanctioned, how could one expect action stemming from the Michael Morton exoneration?

I'm not a lawyer, but to me Bradley calling in all the prosecutors involved for a meeting to review evidence before their depositions (unbeknownst at the time to Morton's attorneys) struck me as straight up evidence tampering, giving the alleged perpetrators an opportunity to get on the same page and get their story straight while muddying independent recollections. The state bar, though, apparently said that was okay by them.

Granted, the complaint against Judge Ken Anderson may be stronger on the merits, if potentially hindered by a statute of limitations, but Bradley's politically convenient, belated, and half-hearted mea culpa doesn't mitigate the fact that he fought for years to keep Judge Anderson's misconduct from being exposed, mocking Mr. Morton's innocence claims while obstructing every possible avenue for proving them. If that wasn't technically unethical according to state bar rules, it certainly was heartless and fundamentally antithetical to the prosecutor's oath to seek justice, not convictions.

Examples like this have convinced your correspondent that the Legislature must find some way to beef up sanctions for prosecutorial misconduct and/or implement preventive procedures, e.g., mandating open prosecution files. The courts won't do it, and it's wholly evident the legal profession is incapable of policing itself on questions of prosecutorial misconduct.

See related Grits posts:

• Justice and Prosecutorial Misconduct
• Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration
• Roundup: Coverage of prosecutorial misconduct in the Michael Morton case
• Holding judges accountable for past misconduct: William Adams and Ken Anderson
• Roundup of Williamson County prosecutorial misconduct fiasco
• On the road to Damascus: The conversion of John Bradley
• Editorials: Weak state bar has failed in oversight role on prosecutor misconduct
• Bradley, Anderson engaged in 'heated discussion' after Michael Morton exoneration
• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• Stare bar will investigate prosecutor misconduct in Michael Morton case
• Unable to squelch prosecutor misconduct allegations, John Bradley passes them off to AG
• John Bradley tries to short-circuit investigation into prosecutor misconduct in Michael Morton case
• John Bradley facing local, national criticism now that Michael Morton formally exonerated
• State Bar should sanction prosecutor from Michael Morton case but almost certainly won't

 And more generally on the subject of prosecutorial misconduct:

• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?

See also the report (pdf) by Morton's attorneys on proseuctorial misconduct in the case and a deposition (pdf) of Bradley former appellate chief who worked on the Morton case, current Williamson County Court at Law Judge Doug Arnold.

MORE: From Simple Justice where, reacting to this case, Scott Greenfield accused the Texas state bar and Supreme Court Justice Clarence Thomas of "horseradish vision."

'Bradleyland': Anatomy of a Meltdown?

Having in a past life worked as a professional opposition researcher in more than five dozen campaigns, I've had the opportunity over the years to watch more than my share of politicians melt down under pressure, both my own clients and opponents, during heated campaigns. And there are signs that's what's happening with Williamson County DA John Bradley, judging from this TV news report from KVUE, which I saw via the Wilco Watchdog. There we find a bizarre claim by Bradley that his electoral opponent, County Attorney Jana Duty, initiated the pending grievance against him at the State Bar, which he went on to deny even existed ("not a grievance but a complaint on a piece of paper which he says came from Jana Duty"). In fact, Jana  Duty did not file the grievance. As Grits reported here, it was a woman named Julie Oliver from a group called the Texas Coalition for Lawyer Accountability. See their press release.

The Watchdog sees this odd divergence from the facts as evidence that John Bradley's "Road to Damascus" moment, as Grits called it in this post, may be short-lived:

Grits reported a few weeks back a story on John Bradley’s election year transformation. It was titled “On the Road to Damascus: The Conversion of John Bradley?” One line from the post stated “Any such optimism regarding Bradley's newly announced conversion, though, should for now remain measured. He’s got a long record, and it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.'"

Bradley was also quoted as saying “It would be very easy I think for me to get upset, bitter, and just react to all of that stuff but I’ve never really approached things that way.”

It appears Bradley’s road to Damascus moment just hit a dead end and he has exited back to “Bradleyland.”

The Watchdog adds that "Sources close to Bradley have stated that he is in complete 'panic mode' and is 'desperate' to salvage any remaining hope in being re-elected." This faux pas certainly sounds like desperation to me. I'd have thought JB was smarter than to just begin flailing and making stuff up. Issuing unfounded attacks you'll inevitably have to retract isn't the way to make up ground if the incumbent DA hopes to salvage his reelection chances between now and the April 3 primary.