Alvin Braziel is dead. The State killed him on Tuesday, December 11, 2018. The circumstances surrounding his death warrant a full-blown investigation. We know how he died—the State injected him with lethal drugs—but we do not know how it is possible the government performed this execution in light of a galling last-minute disclosure of prosecutorial misconduct. Texas’s Chief Disciplinary Counsel must take a deeper look at this case because it appears that any number of Texas prosecutors deserve swift and serious discipline.
The misconduct originated at Mr. Braziel’s trial in July of 2001. There, Dallas County prosecutor George West showed the surviving victim—who witnessed her husband’s murder and was then raped—autopsy photos of her husband while she was on the stand. She, understandably, broke down. When the defense team moved for a mistrial on the ground that the prosecution intentionally elicited an emotional outburst, West denied having any intent to create a disruption. Predictably, the mistrial motion was denied.
Seventeen-and-a-half years have passed since the trial. Braziel was on death row that whole time, litigating his case. Then, on December 10th, less than 24 hours before the scheduled execution, another one of the trial prosecutors, Tom D’Amore, called the current prosecution team and confessed that George West had implied he purposefully provoked the victim’s outburst. Just before West began examining the victim on the stand, he turned to D’Amore and said, “Watch this.”
According to the defense team’s filings from December 11th, the current prosecutors did not reveal D’Amore’s confession until 11:00 a.m. on the day of Braziel’s scheduled execution. The defense team fought for a stay of execution so that some court could consider—for the very first time in the case’s long history—the meaning and impact of this startling admission of misconduct. However, the judiciary got in on the game-playing. Rather than issuing a stay, the trial court stated that it would need to receive a sworn statement from D’Amore by 5:30 p.m. – with the execution slated to begin at 7:00 p.m. Unable to procure the statement on such short notice, the defense team asked the Texas Court of Criminal Appeals to intervene and issue a stay. Then, as Keri Blakinger reported for the Houston Chronicle: “even after they managed to secure an emailed statement from D’Amore, the trial court rejected Braziel’s appeal just before 6 p.m., and the appeals court—over dissents from Judge Elsa Alcala and Judge Scott Walker—turned him down as well.”
Where do we begin?
George West. Well, the misconduct he committed is clear. Not only does the evidence suggest that he intentionally elicited an emotional outburst from the State’s most important witness, but he also lied to the court about his intent. Since then, he has never come clean. Beyond professional ethics, the circumstances surrounding the victim’s testimony raise deep moral questions. Did West plan his mischief with the witness’s knowledge? Or, did he use her, traumatizing her for the dramatic effect it would have on the jurors? Or some combination of the two?
Tom D’Amore. He sat idly by while West did whatever he wanted to do. He then sat idly by while West lied to the court about his intentions. Then, as Braziel raised the issue on a direct appeal decided in 2003, D’Amore did a whole lot of nothing. Days passed. Weeks passed. Months passed. Years passed. Then, less than a day before the State killed a man who was convicted at D’Amore’s hands, he came clean. (But only to other prosecutors, not directly to the court.) Now a criminal defense lawyer, his website brags that “judges trust him” and “prosecutors respect him.” More than that, he claims prestige for being “one of the most experienced and successful capital murder [prosecutors] throughout the entire country.” And, hey, consultations are free!
Justin Johnson, a current Assistant District Attorney in Dallas County. He notified the defense team at 11:00 a.m. on the 11th about the prosecution’s conversation with D’Amore the night before. While he certainly made the right decision in disclosing the information, why did it take something like 12 or more hours to come forward in the last day before Braziel’s execution, with life or death at stake? His delay contributed to the defense team’s inability to get a sworn statement from D’Amore, which meant that the requests for a stay were denied. If the prosecution’s ultimate goal was an execution, then maybe Johnson will be applauded within his office. But, if a prosecutor is actually meant to seek justice, the state bar and the public should raise an eyebrow and ask for more information about what transpired after D’Amore confessed.
We are not naïve at the Open File. In all likelihood, courts would have found any prosecutorial misconduct from the trial to be harmless error, and would have signed off on Braziel’s execution. And we know that Texas is an especially retrograde jurisdiction when it comes to prosecutorial impunity. Nonetheless, Braziel’s execution, the prosecutors’ actions, and the judiciary’s handling of the case all strike the same nerve at the same time. Whatever progress we have made on the prosecutorial accountability front seems slight when a state can still take a man’s life without ever considering serious and credible allegations of intentional misconduct. December 11th was a dark day. We can only hope it marked the beginning of a turn toward prosecutorial accountability in the case, not an end.