Earlier this month, the Court forwarded its proposed changes to the State Bar of Texas for its consideration; by year’s end, the final version of the Amendments should be in effect.  Here’s a couple of things to ponder in all this:

1.  It’s not the Court of Criminal Appeals Deciding the Ethical Rules for Prosecutors. 

The ethical parameters of prosecutors are defined not by the highest criminal court in the state, the Court of Criminal Appeals, but instead by the Texas Supreme Court, as part of its rule-making authority. For some, this may be good news, given the recent hand slap that CCA’s Chief Justice Sharon Keller received from the Judicial Commission. 

2.  Comments to Rules aren’t the Same as a Disciplinary Rule Itself.  First, There’s Little Change to the Rule for Prosecutors. 

The main rule pertaining to prosecutors under the Texas Disciplinary Rules of Professional Conduct is Rule 3.09, “Special Responsibilities of a Prosecutor.” 

Here, things like it’s wrong to pursue a prosecution without probable cause and it’s wrong to fail in promptly and timely disclosing evidence to the defense that tends to show innocence or to mitigate guilty.  Sounds like this stuff should be so clear that a district attorney wouldn’t need this to be in writing (and subject to his/her loss of license for their violation) but we’ve seen how wrong that assumption has proven to be here in Texas.

Consider these examples: 

• in June 2010, DA Stephanie McFarland caught withholding evidence a second time (she’d already been caught once);
• in January 2010, Dallas DA was discovered to have told a police officer who to point out as the culprit when he took the stand; and
• in December 2009, a federal judge freed  Yolanda Madden after she had spent four years behind bars after it was shown that the district attorney had failed to disclose exculpatory evidence in her case. 
• There’s more of course — just click over on the “DA Watch” section of this blog as well as my Blogger blog. 

3.  While Comments Do Give Guidance, They are Specifically Not the Basis for Complaint

Elsewhere in the 2010 Amendments, the Texas Supreme Court also addresses prosecutors in Comment 16 to Rule 3.03, giving an example in an attorney’s duty to protect the integrity of the judicial system, “… a prosecutor’s obligation in a criminal case extends for the life of a wrongfully convicted criminal defendant, in that remedial measures could remove a wrongful conviction from the defendant’s record.”

Now, Houston Chronicle’s Rick Casey recently suggested that the new Rule changes mean prosecutors will be required to apply this Comment’s example to an expert witness who learned that his testimony was wrong — that the district attorney would be ethically required to move forward this new revelation. 

In a perfect world, maybe, but for a crafty district attorney?  Probably NOT. 

You’d think that they would do that just because it’s the right thing to do.  Right?  However, not only do we KNOW that prosecutors don’t want to re-open cases and help defendants they’ve put behind bars (just read this blog) but there’s also the legality that a comment doesn’t carry the same legal weight as a rule. 

As you can read in the Preamble of the Texas Disciplinary Rules, which is left unchanged by the Amendments (see a redline version here), comments “… do not, however, add obligations to the rules and no disciplinary action may be taken for failure to conform to the Comments.”

So, while Mr. Casey makes a great point, and it may seem like form over substance, the comment cannot form the basis of an ethical violation under the New Rules, and there’s just not that much difference in the revised Big Rule, 3.09, to make any D.A. lose any sleep tonight.

That’s right.  A prosecutor in front of the bench being told she’s done something wrong.  The same thing, for a second time.

In 2007 DA McFarland Withheld Info of Two Witnesses in the Laura Ashley Hall  Trial

Stephanie McFarland did not prosecute the trial of Laura Ashley Hall all by herself, but  the 3d Circuit Court of Appeals did rule she ”acted willfully” when the prosecution did not disclose statements made by a witness that implicated the defendant — and in doing so, violated the trial judge’s orders.   She was also found to have held back evidence regarding a witness named Doug Conley during the sentencing part of the case (after the defendant had already been found guilty of the crime). 

Interesting that Stephanie McFarland was the attorney who interviewed the witness who gave the witness statement.  Still, way back then, records show that McFarland said it was just a mistake: nothing intentional.  Oops!

In 2006, McFarland Failed to Provide Resume of State’s Witness – Which Would Reveal Expert Lied

Austin district attorney McFarland has also been found to have hidden the CV (curriculum vitae) of a physician that was a witness in a felony case — doesn’t sound like a big deal, until you learn that the resume showed that the doctor had fudged on his credentials.  And by fudged, of course we mean LIED.

Texas Judge Charlie Baird ruled last week that because DA McFarland kept back the doctor’s resume, the defense did not have the opportunity to cross-examine this sneaky expert on his inflated resume and impeach his credibility.  And by cross-examine, of course we mean put the doctor who had the arrogance to lie about his background and experience in a criminal trial on the stand and “rip him a new one.”

In this case, a UT student name Danish Sheikh was charged and brought to trial by McFarland for choking his ex-girlfriend.  It was a very serious charge for a young man just starting out in life — and no matter what level of charge that is made by the state, citizens are supposed to get due process and a fair trial. 

Oh – and what did McFarland give as the reason that the defense team didn’t get the resume?  Well, she thought she did.  Oops!!  Right.  The Judge didn’t believe her. 

What Happened to the Defendants?

For Defendant Hall, the appellate court decided that hiding the witness statement (which dealt with the issue of who had dismembered the victim’s body) did not change the outcome of the trial.  So, no new trial on guilt versus innocence.  However, 3rd Court of Appeals did order a new sentencing hearing in the case on a finding that Stephanie McFarland and the other prosecutor in the case unfairly kept information about another witness in the punishment phase.

For Defendant Sheikh, the Judge has vacated Sheikh’s aggravated assault conviction and his five-year probation sentence.

What Happens to Stephanie McFarland?

So far, not much.  Apparently, she’s still working for the Travis County District Attorney’s Office and she’s still trying cases.  Of course, things may change soon.  For one thing, the Austin Criminal Defense Lawyers Association may be getting involved.  And defense attorneys will be asking that McFarland be recused from Hall’s new sentencing trial (duh). 

Fair Trial.  Due Process.  How can prosecutors disregard them?

Seems that someone might be wanting to look through other cases that this prosecutor has tried.  You gotta wonder what other evidence might be stuffed in boxes that defense teams and juries never saw.

In other words, the investigators for Texas prosecutors are out in the front lines, and you’d expect them to be professional, exact, and trustworthy.  After all, they’re trying to find stuff to use against Texas citizens who have been accused of crimes, right? 

DA’s Drug Investigator Caught with Norco and Ativan

Wrong.  Down in Bee County, the Grand Jury has just issued indictments against Doug Phillips, who was the drug investigator for Bee County District Attorney Martha Warner.   Seems that back in November 2008, Doug Phillips was caught with two prescription drugs: Norco and Ativan.

Doug Phillips was indicted along with a woman named Tammy Ezzell, who allegedly had been getting prescription drugs on Christus Spohn Hospital forms without having the okay from the physician whose name appeared on the form.

It’s not clear from media reports exactly what the relationship is between Doug and Tammy, but reading between the lines it looks pretty clear that Tammy was not a good influence.

Former DA Investigator Faces 10+ Years in Prison and $10,000 Fine

Now, Investigator Phillips — whose job was to investigate illegal drug cases — is facing two counts of third degree felony. If he’s convicted on any of these charges, he faces up to 10 years in prison and monetary fines up to $10,000. 

Bee County DA Warner reports that Doug Phillips has been “separated” from her office.  But that doesn’t mean he’s fired — Warner has gone on record that Phillips’ has a job is waiting for him if he is found not guilty — and if a position is available.

You gotta wonder how strong the case is against this guy given that he’s worked on the State’s team for years.   The DA brought in the Department of Public Safety to work this case: you know, the agency that’s working with the FBI all over Texas on various law enforcement corruption cases.   Afterwards, a Grand Jury issued the indictments. 

At least nothing was swept under the rug here.  The District Attorney is having a state agency work the case, and the Grand Jury make the call on proceeding with charges.  We’ll have to see what the fates have in store for the former drug investigator who was caught with illegal drugs.

And less than two years later, he’s out. 

Ray Sumrow has an interesting story.  He was the head prosecutor in Rockwall for SIX terms.  He was named ”Prosecutor of the Year” by the State Bar of Texa in 2001.  He survived cancer that year, too.  Pretty popular guy, right?

Well, maybe until Ray Sumrow was discovered to have stolen around $9600 in computer stuff and cash from the county he served, as well as moving $68,000 out of the county accounts and into his own personal account for awhile (though he did put the cash back of his own accord).  What was this guy thinking? 

Less than a decade after being named Top Prosecutor, Ray Sumrow went to jail.  The State Bar of Texas that had the Big Ceremony for him back in 2001, disbarred him last summer.  In January, he was quietly released from jail and is out on parole, some thinking he’s back at home in Hunt County were he grew up.  

How’d he get out so fast?

Getting out after 20 months on a 15 year sentence sounds like a pretty good deal, doesn’t it?  Well, some have been wondering about that — and the Board of Pardons and Paroles and others in the know, report that it all adds up.  He’s served a quarter of his sentence, and that’s the standard rule of thumb for someone to be considered for parole in Texas. 

How’d they count that up?

From what the media’s reporting, the officials have counted (1) his 20 months behind bars; (2) his 18 months of credit for good conduct; (3) his 10 months of credit for doing work while serving time.  Add those together, and you’ve got 48 months.  That’s gonna get you to 1/4 of a 15 year (180 month) sentence.

Wow.

Policeman Gives Sworn Statement, Dallas County Prosecutor Told Him (as Sole Eyewitness) Who to Point Out At Trial

Just this past week, another Texas scandal involving the Dallas County District Attorney’s Office is brewing. The ONLY eyewitness in a trial back in 1995 has now come forward, and given a sworn statement that the prosecutor coached the witness to take the stand and point the finger at defendant Richard Miles.

The “eyewitness” is now a police officer in Oklahoma, has signed an affidavit just this month, swearing that he was told where Mr. Miles would be sitting in the courtroom, and that he needed to point the finger at this man — even though the guy in the courtroom didn’t look like the man that Miles saw shoot a pistol into a car, killing one man and injuring another.

Miles isn’t going to be released based upon this Oklahoma cop’s affidavit because he’s already out — freed after 14 years behind bars — because a memo was discovered in an old Dallas County District Attorney file that identified someone else as the suspect … a memo that was never, ever turned over to the defense.

And this happens everywhere, apparently, since just this past week, over in Fort Lauderdale  ….

Before someone starts labeling this a rogue incident, an exception the rule of prosecutors being trustworthy, consider this new story that hit the stands this same week.  Over in Florida, the Public Defenders Office – supported by the Broward County Association of Criminal Defense Lawyers – has made public a letter that was sent to the office of State Attorney Mike Satz.  In it, the Public Defender’s Office flat out accuses the Florida prosecutors of routinely playing outside the rules.

The letter charges, in part, that the state attorneys there are not only routinely holding back evidence from defense attorneys that is helpful to the defendants, but they’re also covering up for bad cops and helping out those who come through their offices who happen to be of a higher socioeconomic level — the rich and powerful. (And you thought this only happened on Miami Vice reruns.)

The letter was sent just last Tuesday by Public Defender Howard Finkelstein, where he writes that he’s been forced “…to the inescapable conclusion that the [Florida] State Attorney’s Office, either through neglect or by design, has been non-compliant with its obligation to disclose favorable evidence to criminal defendants.”

Just Some Bad Actors, or Corruption in the System?  Hmmmm……

Of course, some might say that Broward County is a bad example.  It’s been labeled corrupt, and over the past two years alone there have been five arrests of elected officials, six cops have been sent to prison, and the city manager’s been tagged for embezzling a half-million bucks.

But then, maybe they haven’t been watching the Dallas County District Attorney’s Office much.  Heck, just last month the county commissioners voted to settle the lawsuit brought against Dallas County by a former investigator in the DA’s office, who had sued for wrongful termination alleging that he’d been fired for reporting the unethical behavior in the Dallas DA’s Office.

Curiouser and curiouser….

This is getting lotsa attention for DA Ligon.

For example, plaintiff’s personal injury lawyers at Jim Adler & Associates — you’ve seen their ads if you watch any TV whatsoever — have already posted on this at their firm blog.  They call this a “sweet” idea, discuss how “shame” may be a great deterrent to the holiday car crashes caused by drunk driving, and then conclude their post (of course) with a reminder that if anyone wants to file a wrongful death or serious personal injury claim based on drunk driving, well … they DO do that kind of work. 

Techies and geeks interested in the tweeting aspects of DA Ligon’s brilliant idea are writing about this, too.  Gizmodo already follows the DA on Twitter (Ligon can be seen at twitter.com using the name “MontgomeryTXDAO”) — and they’re reporting they will be reading this “comedy goldmine in the making.”

It’s a story that is getting national media coverage.  MyFoxCharlotte is covering the story, quoting Montgomery County assistant district attorney Warren Diepraam as claiming he initially came up with the idea of tweeting all drunk driving arrests between Christmas Eve and New Year’s Day. 

Here’s some things that should be considered …like innocent victims suing for damages ….

1.  This isn’t being posted on a government site.  It’s been tweeted on a personal account set up at www.twitter.com.

2.  Anyone arrested for DUI is still innocent until proven guilty.  What happens to those who are later found innocent?  The “shame” of the tweet is already out there — and assuming arguendo that the tweet does cause harm and humiliation, then can the victim sue the twitterer individually for the harm done?  Remember, this isn’t a government account.  Can they sue the assistant district attorney, who so proudly claims the Shaming Tweet Strategy as his big idea?  Can they sue Twitter, too?

3.  What about expulsion of a drunk driving charge now the road?  Do expulsion orders need to include social media sites now?

Well, after being in jail for four years — yep, 4 YEARS — Yolanda Madden is once again enjoying her freedom after Federal District Judge Rob Junell vacated her sentence. 

The Smoking Gun that was hidden from the defense

While the federal judge wouldn’t go so far as to accuse the prosecution of intentionally hiding the Smoking Gun documentary evidence, no one could argue its existence.  What was it? 

A log sheet.  A simple, routine log sheet of the Odessa Police Department.  The big deal about the log sheet is the absence of a key name on its roster.  Odessa Police Deparment Officer Greg Travland testified at Madden’s trial that she confessed to him — but the Smoking Gun log sheet reveals that Travland was NOT in the police station at the time. 

Of course, this story gets worse.

Yolanda Madden consistently claimed that drugs were planted on her.  She told this to anyone who would listen — loudly.  Her husband spent the family’s life savings in support of his wife, believing that she had been set-up. 

A drug informant ADMITTED that he was the one who planted the drugs (crystal meth) on Yolanda Madden.  Madden took a polygraph and passed.  So did the informant.  Madden took hair follicle and urine drug tests.  No evidence of drugs. 

Law enforcement didn’t care.  Madden was still tried and convicted. 

Madden’s Family Sought the Help of Barry Cooper’s Kopbusters

Frustrated and feeling powerless, Madden’s father asked Kopbusters to come to Odessa and help them fight the injustice.  Kopbusters did — and the result was their now-famous video of the Odessa cops entering a phony drug house set up by the Kopbusters.  For details on how the Odessa cops fell prey to the Kopbusters, check out our December 10, 2008, post where Kopbusters founder (and former cop) Barry Cooper gives all the details.

What Happens Now? Get this — another trial has been set.

Let’s recap:

1. Kopbusters demonstrate that the Odessa cops play fast and loose with the law in drug cases;

2.  an informant gives testimony in court that he planted drugs on Yolanda Madden;

3.  the informant passes a polygraph;

4.  Yolanda passes a polygraph;

5.  Yolanda tests clean in hair follicle testing;

6.  Yolanda tests clean in urine testing; and

7.  the cop who claims Yolanda confessed to him wasn’t even at the police station at the time of the purported “confession,” as revealed by a log sheet NOT PROVIDED TO THE DEFENSE during trial….

and the federal judge schedules a new trial for Yolanda Madden, set for March 1, 2010.  They’re going to try her AGAIN?

What’s Really Going On Here?

It’s already being reported that the real story behind all this is the cops mistook Yolanda Madden for a drug dealer they nicknamed “the Ice Queen,” and used the informant with a bag of meth (which he handed over to Yolanda) as a way to bust this notorious Poison Ivy of Odessa. 

Sure looks like they got the wrong girl and they’re finding it very, very hard to admit they’ve made a mistake. 

Someone — like the Attorney General, the Texas Rangers, or the FBI — should help them.

But Skinner isn’t stopping with an appellate fight that he didn’t have adequate defense counsel — this Death Row inmate, represented by lead counsel Robert Owen of the UT School of Law Capital Punishment Center, is also challenging the prosecutor’s work during trial.

That’s right: the Death Row inmate is suing the prosecutor who tried his capital murder case. 

Henry Skinner is alleging that federal prosecutor Lynn Switzer has — right now — DNA evidence that could prove his innocence, and is refusing to release it.  Refusing, even though he’s set to die within 90 days.

According to Skinner (from his federal complaint): 

“On October 20,2009, without giving Plaintiff’s attorneys any notice or an opportunity to be heard, the 31st District Court entered an order directing that Plaintiff be executed by intravenous injection ‘at any time after the hour of 6:00 p.m. on the 24th day of February, 2010 …. Defendant’s refusal to release the biological evidence for testing violates Plaintiffs Fourteenth Amendment right to due process and his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff requests of this Court an order declaring that Defendant’s continued withholding of the evidence violates Plaintiffs constitutional rights and requiring that Defendant release the evidence to Plaintiff under a reasonable protocol regarding chain of custody and preservation of the evidence, in order that Plaintiff can have the evidence tested at his own expense.”

Henry Skinner is scheduled to die in a matter of weeks, and he has to have some comfort in the dogged efforts that his appellate lawyers are undertaking on his behalf.  Harvard Law graduate and UT Law Professor Bob Owen and his team at the UT’s Capital Punishment Clinic are working hard here — one can only hope their efforts will not be in vain.

Long after the criminal justice system placed Claude Alvin Simmons, Jr., 54, and Christopher Shun Scott, 39, into Texas prisons for life and threw away the key, these two student organizations originated the efforts that resulted in this week’s exoneration of the two men. What a wonderful thing.

The Killing of Alfonso Aguilar in 1997 & Six Minute Jury Deliberations

Back in 1997, Alfonso Aguilar was shot and killed during a home-invasion. Then, get this: the jury deliberated a mere 6 minutes before convicting Simmons. Scott was also convicted for the murder in a back-to-back trial with Simmons. For ten years, Simmons and Scott — innocent men — have been incarcerated for a murder they didn’t commit.

Students Take Their Concerns to the Dallas County DA

The UT-Austin and UT-Arlington students took their concerns about Scott and Simmons to the Dallas County District Attorney. Working with the Dallas Police Department, the DA’s office opened the cold case and reviewed not only the physical evidence from the crime scene but the confession by another man, Alonzo Hardy, who also passed a lie detector test where he admitted to the killing of Mr. Aguilar so long ago.

Alonzo Hardy Confesses that he and Don Michael Anderson Committed the Murder During a Robbery/Home Invasion

The truth will out, as Shakespeare wrote — and now we know that Alonzo Hardy and his pal, not Simmons and Scott, were the ones robbing the Aguilar home back in 1997 when a capital murder was committed.  Hardy’s pal Anderson has been arrested.  Simmons and Scott have been exonerated and are expected to be released from jail this week. 

Hats off to the UT students who started this ball rolling.  And, congratulations to Mr. Simmons, Mr. Scott, and their loved ones on this happy day.

The Dallas County District Attorney’s Office isn’t going to pay for everyone’s crime lab tests anymore.

Before now, if a prosecutor ordered a lab test, Dallas County paid for it.  However, the Commissioners for Dallas County — looking at a $60 million shortfall in the budget — instructed all departments in the county to cut their departmental budgets by 10 percent.  

This edict has trickled down to impact every criminal defendant in the county — because all the tests being done by the county crime lab, the Southwest Institute of Forensic Sciences, will have to be paid for by the police departments involved in the arrest or investigation.   

What Will This Mean for Local Police Departments?

Police department budgets are just as stretched as everyone else’s — and suddenly, they’ve got to take on costs that for years they’ve been relying upon Dallas County to cover.   Surprise, surprise.  Reportedly, law enforcement will not be required to pay in advance for lab tests but they will have to enter into an agreement to pay the fee.

The Reality Is That There’s Gonna Be Less Lab Tests Run

What does this mean to the accused?  Probably less testing.  Lab tests aren’t going to be done unless absolutely necessary because of these cost cuts. 

This is Going to Hurt People

And, innocent people will be wrongfully accused because lab tests haven’t been done to rule them out.   We all know this is going to happen. 

Of course, it’s not as if the lab tests that are done by the crime labs are really trusted, anyway.  For details on how inaccurate and biased the crime lab results can be, check out Grits for Breakfasts’ discussion of the Houston Crime Lab.