Proposed changes to the Ethics Rules applicable to all lawyers licensed to practice in the State of Texas have been made by the Texas Supreme Court. You can read them in their entirety at the Texas Supreme Court’s website.  

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.

In every district attorney’s office across the State of Texas, there are men and women employed as investigators for the State.  They’re gumshoes just like the private detectives you see on television — they go out and talk to people, track down facts, get information that the attorneys then use to supply evidence in support of their criminal cases.  

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.

Former Rockwall District Attorney Ray Sumrow got caught with his hand in the till, literally, and was tried, convicted, sentenced, and thrown in jail for being a thief. 

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.

Justice has been victorious all because of the hard work of students involved with both (1) UT-Austin’s Texas Center for Actual Innocence and (2) the Innocence Network at UT-Arlington.

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.