Prosecutorial Misconduct in Texas: Right Now, it’s an Appellate Fight

Prosecutorial misconduct isn’t going away.  It’s a very serious problem here in Texas.  And it’s been a huge evil lurking in our criminal justice system for many years.

Why is it so wicked?  Because a prosecutor has so much control over what happens to an individual who has had their freedom taken from them by the police.  That prosecutor decides whether or not to charge them, what charges they should face – even if the death penalty should be sought against them.

As former U.S. Attorney General, U.S. Solicitor General, and Supreme Court Justice of the Robert H. Jackson explained: “The prosecutor has more control over life, liberty, and reputation, than any other person in America.”

Increased Public Awareness of Prosecutorial Misconduct

There has been increased public awareness about abuses by state attorneys, true.  See, for instance, the coverage in the Huffington Post last spring, written by Matt Ferner in an article entitled, “Prosecutors Are Almost Never Disciplined For Misconduct.”

However, shining a brighter light on the crisis is one thing.  Solving the problem is another.

Right now, all too often there are prosecutors who are doing bad things in order to get a conviction here in Texas with fingers crossed that they won’t get caught.  The temptation to get another victory on their career record and advance professionally can be great.

If their misconduct does get revealed, then what happens? 

The innocent victim, now a convicted inmate, has to fight within the criminal justice system to get justice.  They may be doing so in the face of a death sentence.

Meanwhile, too few prosecutors are punished for prosecutorial misconduct if they are caught.  And that’s IF they get caught.

These are odds you’d take to Vegas.  Heck: these are odds your mother would take to Vegas.

Consider this. Only one prosecutor in this country was disciplined for discovered prosecutorial misconduct between the years of 2004 – 2008.

That was a Texas prosecutor named Charles Sebesta.  He was found to have withheld exculpatory evidence in the murder trial of now-exonerated Albert Graves.

We discussed that misconduct back in February 2005; see, “Prosecutorial Misconduct Still A Big, Big Problem: District Attorneys Do Bad Things.”

Right Now, Prosecutorial Misconduct is usually an Appellate Court Fight

So, from a criminal defense perspective, things haven’t changed even though more people are talking about it.  It’s a continuing fight, every day.

Defense lawyers stay alert for signs that there may be wrongdoing by the state’s attorney.  This vigilance is a difficult task, given the bad prosecutor is hiding that ball from the defense team.

It’s another aspect of criminal defense today.  Defense lawyers have to investigate, research, and prepare their defense on the grounds of the particular case.  That’s the job.

But the reality is that in addition to doing their job, a criminal defense attorney must be on the lookout for possible prosecutorial misconduct 24/7/365. 

Another reality:  Defense attorneys representing those accused of crimes all too often don’t learn of the bad acts of a prosecutor before there is a trial and he or she has obtained their conviction.  That initial victory is theirs.

The defense lawyer often has to go before an appellate court for justice.  Prosecutorial misconduct today is really fought in appellate review, because the misconduct succeeded in getting a conviction. 

For more on this national crisis, read the 2016 Prosecutorial Oversight Report compiled and published by the Innocence Project.

 2016: Four Examples of Judges Ruling on Texas Prosecutorial Misconduct

There was lots of discussion of the issue of prosecutorial misconduct during the past year.  That’s good.

The bigger stories here in Texas were actions undertaken in courtrooms to try and rectify the injustice caused by prosecutorial misconduct.

Consider the following examples of reviewing courts hearing cases of prosecutorial misconduct where the sentence is lengthy — and sometimes death:

1.  David Temple – Life Sentence

Down in Houston, a man who spent 17 years behind bars in the state prison over in Huntsville was freed by the courts last month.

David Temple was a football coach who received a life sentence for the 1999 murder of his pregnant wife and unborn son.

The Court of Appeals ordered a new trial for David Temple and that he be released on bond, as well.  Temple’s lawyers had proven to the appellate court that Temple was a victim of prosecutorial misconduct.

Specifically, that the Harris County district attorney had not turned over exculpatory evidence to the defense lawyers at trial, or had dragged his feet in doing so.  This evidence included the possibility that one of Belinda Temple’s students may have shot her in anger because she had told his parents that he had been skipping school.

Read the November 2016 Order of the Texas Court of Criminal Appeals in Ex Parte Temple.

2.  Edward George McGregor – Capital Murder

In November, a Fort Bend County judge reviewed and upheld misconduct complaints filed against Liz Exley, a former Harris County prosecutor.  Elizabeth Shipley Exley had tried the capital murder case against defendant Edward George McGregor back in 2010.

The judge ruled that Exley had lied to the jury when she denied striking deals with jailhouse snitches so they would take the witness stand and give testimony helpful to the prosecution.  The testimony of one snitch (Delores Gable) later proved to be a total fabrication, 100% untrue.

The judge ordered Edward McGregor to have a new trial.  His petition for writ of habeas corpus was successful. (What’s that?  Read our earlier post explaining what a habeas does.)

3.  Linda Carty – Death Sentence

The Texas Court of Criminal Appeals heard arguments on behalf of Texas Death Row Inmate Linda Carty several months ago and ruled that she was a possible victim of prosecutorial misconduct.  In her case, people gave testimony to the CCA.

This is a rare event – the highest criminal appeals court in the state usually does not hear additional testimony.

The witnesses testified that they were threatened by the prosecutors into testifying against Carty.  One witness testified he was specifically told to lie on the stand.  Other evidence at the hearing included testimony that prosecutors destroyed emails and case documents.  And that they kept over a dozen recorded statements from witnesses from Carty’s defense lawyers.

Result?  The CCA ruled that the Brady Rule may have been violated by the district attorney’s office in the capital murder trial of Linda Carty.  They sent her case to a lower court judge to make the final determination.

Read the CCA Order in Ex Parte Carty. 

Then in September 2016, Texas State District Judge David Garner ruled that the prosecutors had overwhelming evidence to get a conviction against Carty.  He did not find prosecutorial misconduct.

According to the Judge, “… in light of the entire body of evidence presented, including the trial testimony, the court finds there is no reasonable likelihood it could have affected judgments returned by the jury.”

So Carty’s attorneys must return to the CCA to have Garner’s opinion reviewed.  Right now, she remains on Texas’ Death Row.

4. Courtney Hayden – 40 Years Imprisonment on Murder Conviction

State District Judge Nanette Hasette reversed the conviction of Courtney Hayden several months ago and ordered a new trial in the murder of Anthony Macias.

Why?  Prosecutorial misconduct.

In her order, Judge Hasette explained that “[t]he court concludes that the intentional suppression of evidence and lack of timely disclosure of exculpatory, mitigating and impeachment evidence described herein constitutes prosecutorial misconduct and undermines the confidence of the public in the judicial system, and the outcome of this trial specifically.”

In this case, the prosecutors sent a letter to Hayden’s defense lawyers after the jury had already reached a verdict and the defendant had been sentenced to 40 years behind bars.  The letter explained that the trial testimony given by the medical examiner in the case was not the same opinion he had when he first examined the victim’s gunshot wound.

At trial, the medical examiner told the jury the shot came from up to 3 feet away.  But his first opinion was that the gun muzzle was place on the skin itself.

This supported the defense argument of self-defense.  There was also a text from the examiner to the prosecutor that he “could live with three feet.”

Result?  The Order by Judge Hasette was appealed by the prosecutors.  The appellate court stayed the new trial order pending these appeals and Hayden was given limited release on bond.

Read the May 2016 Order in State v. Hayden.

That’s not all.  There was the revelation of a three-page letter sent to Judge Hasette that accuses the prosecutors of perjury.  See, “Anonymous letter sent to judge accuses DA of perjury,” written by Krista M. Torralva and published by the Corpus Christi Caller Times on February 3, 2016.

If true, this would be prosecutorial misconduct to cover up earlier prosecutorial misconduct.

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For more on prosecutorial misconduct, read our web resources on appeals, check out Michael Lowe’s Case Results, and see our earlier coverage on this important issue including:

1. Prosecutorial Misconduct: How Bad Is It? Dallas Chief Investigator Pleads Guilty to Taking Bribe
2. Prosecutorial Misconduct in Texas Murder Trials: Prosecutors Fighting Against Misconduct Allegations
3. Prosecutorial Misconduct in Texas Alert: Ethical Rules Held to Have Broader Duty Than Brady to Turn Over Exculpatory Evidence to the Defense
4. Trusting Prosecutors With Forensic Lab Evidence? Consider Harris County District Attorney: Notices Sent of 100s of Wrongful Convictions
5. Prosecutorial Misconduct Allegations Against Four Top Texas District Attorneys: Update
6. Texas Top Prosecutors In Trouble: Dallas DA Craig Watkins, Austin DA Rosemary Lehmberg, Corpus Christi ex DA Anna Jimenez, Williamson County ex DA Ken Anderson – How Big is Prosecutorial Misconduct Problem in Texas?