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Harris County may be shedding its reputation as the death penalty capital of the United States, but its long history of capital prosecutions may expose a related legacy of prosecutorial misconduct. The county has sent more defendants to death row than any other jurisdiction in the country since capital punishment was reinstituted in 1976, but the number of new death sentences has declined precipitously in the past few years. With dozens of old cases working their way through the appeals system, however, post-conviction review is revealing an ugly underbelly to those decades of hyper-aggressive prosecutions. As newly-elected District Attorney Kim Ogg prepares to take office with a reform mandate, she will have to confront the possibility that misconduct contributed to the convictions and sentences of several inmates out of Harris County, including some on death row. The questions for her include whether she will operate her office differently and what steps she’ll take to correct course where her predecessors disregarded the professional rules of conduct.

The high-profile capital case of Linda Carty has exposed a prosecutorial culture resistant to the constitutional obligation to disclose exculpatory evidence to defendants. Carty was convicted in 2002 for the murder of Joana Rodriguez. Two months ago, a reviewing court determined that the Harris County District Attorney’s Office (“HCDA”) had systematically violated its Brady obligations at the time of Carty’s trial. That finding was overlooked because the court ultimately upheld Ms. Carty’s conviction and death sentence. But, it is well worth unpacking, if for no other reason than that it raises questions about every other case the State prosecuted in that same era.

In 1972, the Supreme Court held in Giglio v. United States that evidence affecting the credibility of State witnesses is covered by the Brady rule. This sort of evidence, known as impeachment evidence, often involves statements that witnesses make during the course of a criminal investigation that contradict the testimony they give at trial. In Harris County, prosecutors evidently believed that impeachment evidence did not have to be disclosed to the defense if the prosecution thought that it was not credible. Of course, this makes no sense. Juries, not prosecutors, are charged with determining whether witnesses have provided credible testimony. Due process clearly requires that this evidence indicating that testifying witnesses are not credible must be provided to defense lawyers so they can use it accordingly.

Leave it to the Harris County DA’s office to take the narrowest possible view of a defendant’s constitutional right and justify the suppression of evidence on that view. The post-conviction court’s review of the Carty petition for relief led it to conclude:

  • “The State was operating under a misunderstanding of Brady at the time of the Carty trial.”
  • “At the time of the Carty trial, whether impeachment evidence constituted Brady evidence was determined on a ‘case by case’ basis and was resolved with a ‘judgment call’ based on ‘gut instinct.’”
  • “At the time of the Carty trial, the Harris County District Attorney’s Office did not believe that impeachment or exculpatory evidence needed to be disclosed if the prosecutor did not find the testimony credible.”

These findings confirm that the office—known to be one of the most influential and powerful in the State—as a matter of practice withheld impeachment evidence if prosecutors found that that it was not credible. Were the State’s understanding of the Constitution correct, prosecutors could simply suppress all evidence that contradicted its prospective trial narrative by independently determining such evidence was not credible—a position that prosecutors are both practically and cognitively likely to take in many instances.

Carty’s case involved more than just the suppression of impeachment evidence. The post-conviction court also determined that the State failed to notify the defense that it told one witness he would not go to prison if Carty received the death penalty. The failure to inform the defense of deals or promises of leniency made in exchange for testimony also violates Brady.

A few weeks after the judge made these damning findings in Ms. Carty’s case, another old Harris County capital case raised more questions about the office’s litigation approach. The defendant, Chuong Duong Tong, was sentenced to death in 1998 for the killing of Houston police Officer Tony Trinh. A federal judge ordered a hearing on Mr. Tong’s Brady claim regarding a key State witness, a jailhouse informant named Stephen Mayeros. At trial, Mr. Mayeros testified that Mr. Tong confessed to him at the jail after his arrest. What the defense team did now know, however, was that the prosecution had promised to drop Mr. Mayeros’s charges in exchange for his testimony. According to the court, “Mr. Mayeros admitted that he was told that ‘if [his] testimony against Mr. Tong was helpful toward securing Mr. Tong’s conviction, the Harris County district attorney could see no reason why he would need to prosecute Mr. Mayeros for a driving-without-a-license offense.’” (The opinion is available on WestLaw at Tong v. Davis, No. CV 4:10-2355, 2016 WL 5661698, at *14 (S.D. Tex. Sept. 30, 2016).) The hearing very well may show that the HCDA had an even more paltry Brady compliance record than the judge in Carty realized.

In the background of these two recent judicial rulings resides the heated litigation in the murder case of David Temple. The lead prosecutor in that case was Kelly Siegler, a former Harris County top prosecutor who is now a star in the reality crime show called Cold Justice. (She has also drawn serious scrutiny in two recent reports by the Fair Punishment Project of Harvard Law School, one which points out how she contributed heavily to former District Attorney Johnny Holmes’s status as one of the nation’s “deadliest prosecutors.”) Mr. Temple was convicted and sentenced to life imprisonment in 2007 for the 1999 murder of his wife Belinda Temple. Last year, a judge found that Ms. Siegler and her team had committed 36 separate instances of misconduct, and the court granted Mr. Temple a new trial. The State is currently appealing that decision. Among the main problems with the State’s position was Ms. Siegler’s insistence that exculpatory evidence did not need to be disclosed if she deemed it was not credible. That very assertion is what the court in Carty characterized as a fundamental misunderstanding of Brady. Apparently, the HCDA had the same mistaken view in 2007 that it possessed in 2002.

If these three cases were not enough, a state court last week granted death row inmate Edward George McGregor a new trial in a capital murder case that resulted in a life sentence in 2010. There, a Harris County prosecutor named Elizabeth Shipley Exley struck deals with key State witnesses and then permitted them to testify falsely on the stand that there were no agreements or promises of leniency or assistance in place. The defense attorney representing Mr. McGregor explained why the case is significant:

There’s a larger story here, and the larger story is the systemic misuse of so-called jailhouse witnesses by prosecutors . . . to fill in holes in cases that they otherwise might not be able to win. It’s a true disgrace. It’s a culture of dishonesty that has fostered in prosecutors’ offices across the state.

A media inquiry of whether outgoing DA Devon Anderson would discipline the prosecutor for her misconduct returned no response. Given the wave of old cases in which defendants are producing compelling evidence of systemic prosecutorial misconduct, it may be a question that incoming DA Kim Ogg will have to answer over and over again. Perhaps the better course will be for her office to revisit these cases internally and identify and concede reversible misconduct without further draining the criminal justice system’s resources in protracted post-conviction litigation.

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