Here are the arrest documents for Jaime Abeytia.
In a hearing requested by Respondents Theresa Caballero and Stuart L. Leeds, both judges assigned to the respective cases agreed with Caballero and Leeds that Stephanie Strolle’s, attorney for the Texas Commission for Lawyer Discipline, pleadings were deficient. Ms. Strolle argued that her pleadings were sufficient. However, both judges disagreed. Judge Parks stated to Ms. Strolle that her pleading was conclusory only and did not put Respondent Leeds on proper notice. Judge Parks ordered Ms. Strolle to amend her petition within 3 weeks. Judge Gilles ordered Ms. Strolle to amend her petition within 4 weeks. Respondents had filed Special Exceptions arguing that Ms. Strolle had failed to notify them how they had allegedly violated the Texas Code of Professional Responsibility.
A review of the petitions filed by Ms. Strolle show she cited no examples of conduct by Respondents that support her allegation that Respondents have violated the Texas Code of Professional Responsibility. Ms. Strolle has had 1 year to file proper pleadings.
Judge Parks concluded his hearing on the Leeds case and Judge Gilles began his on the Caballero case. El Paso Times “reporter” Marty Schladen quickly exited the courtroom after Judge Parks left the bench. It appears Schladen was uninformed that Judge Gilles had scheduled a hearing and Schladen left before Judge Gilles began his hearing. At the end of Judge Gilles’ hearing Schladen came back in. One wonders when he figured out that he missed the whole hearing. The hearing ended and Schladen loudly and abrasively yelled across the entire courtroom from the spectator gallery to the judge’s bench asking the judge questions that had Schladen been present for the hearing he would have not had to waste the judge’s time on. It appears Schladen also missed the significant legal issue which was the State Bar being ordered to re-do its pleadings.
A political article by Attorney Stuart Leeds
Steve Smith of Brazos, TX is running against incumbent Justice Gray of the Tenth Court of Appeals. Ironically, Smith has levied charges against Justice Gray for not having the temperament and neutrality to be a judge. It just goes to show how dishonest Smith is. Having tried an eight day trial against the State and against Smith, “judge” presiding, my trial partner, Theresa Caballero, and I have no qualms about saying Smith is, by far, hands down, the worst “judge” we’ve ever seen in our 52 years of combined experience.
Smith doesn’t even need to get warmed up. He convened proceedings by sneering and pointing at us demanding we come to the bench. The voir dire panel was outside. He held ex parte, off the record conversations, with the prosecutors. He threatened to have us arrested if we didn’t engage in off the record conversations with him. He allowed clearly perjured testimony by the State. He allowed the State to violate its Brady obligations and threw a fit when we objected. He admonished our client in front of the jury for hiring us, this was after she was acquitted. He harbors hatred toward Mexicans and Catholics as evidenced by e-mails and court rulings in this and other cases.
He was voted the second worst judge of the Brazos county court house. No doubt the lawyers in Brazos are supporting him so they don’t have to suffer him anymore. Up and out is the prevailing sentiment when dealing with local rubbish.
Smith locked down the court room after the jury came back with a full acquittal of our client, ordering jury and audience not to move while he went into an apoplectic tirade against us, the winning side. He actually ordered that everyone witness his madness. Real normal behavior there.
And witnesses there are. They are coming up off the street offering their names and testimony against Smith. The average, busy woman/man is so disgusted by Smith’s behavior they are wondering where to sign up to tell all.
Smith also loves to drop names. It makes him feel important. Anyone who has to try a case in front of him will have to put with incessant “I’m so important” conversation with him. It’s all about him. His insecurity (another great quality in a judge) does provide for comic relief though. Just make sure you hide your laugh behind a cough. Someone ought to do a psychological profile on Smith. If the above described behavior is the gold standard where Smith comes from, all we can say is better them than us.
Two true stories from the El Paso County, Texas Court House. One story illustrates the corrupt and the other goodness.
First the bad:
I am running for Criminal District Court No. One. I have two opponents. Both are assistant district attorneys, employees of DA Jaime Esparza. Neither one has resigned in order to run. Both are campaigning during business hours. Both were at Democratic County Headquarters at 11:00 am a month ago. Two months ago, one was at the El Paso Bar meeting candidate forum at 11:30 a.m. This morning one came sauntering into the court house at 8:45 am, 45 minutes after start time. These are just the times when I have caught the two not at work. Do you really want to be financing the campaigns of two assistant district attorneys? Is this honest? Of the two, Diane Navarrete I found to be the most dishonest. Instead of quitting her job and campaigning on her own time, she is milking her $100,000/year plus taxpayer position for all that it’s worth. When confronted with this at forums she simply ignores the fact that she is chronically out campaigning during business hours. When a person takes money from the taxpayers to render a service and then instead spends time out promoting herself, most people would call this stealing.
Navarrete is also the prosecutor in charge of cases assigned to the court where her office dismissed Sexual Assault of a Child charges against EPPD officer Phil Amato-they said they were dismissing the charges because the “girl lied about her age.” Navarrete knows that the “girl lying about her age” is no defense in the state of Texas. Navarrete routinely prosecutes non-cops, in fact young boys, for having sex with underage girls who “have lied about their age.” When you ask why she has the double standard between the average boy and the COP (who should know better than to have sex with his partner’s daughter’s 13 year old best friend) Navarrete just walks off. In fact Sherrif Wiles was not happy that Aamato’s case had been dismissed. Wiles, then police Chief, had worked hard to get Amato fired. With the dismissal out of Navarrete’s case load, Amato was reinstated in the PD and is back out on the streets. You can thank Dianne Navarrete personally for that one. Is this Judge material?
The good story:
Few people in the wider community know that they have a great judge in charge of CPS court. His name is Oscar Gabaldon. He was appointed in the early 2000′s by Judge Fred Chavez of the 65th Judicial District Court to handle CPS matters. Judge Chavez made a wonderful selection in hiring Judge Gabaldon (All of Judge Chavez’ judicial appointees are excellent: Richard Ainsa, Terri Ligon, Jose Juarez.). Judge Gabaldon is never on one side or the other. He listens carefully to each word that is said. He treats all the participants with dignity. He is aware of the pain and suffering that goes on in CPS cases. He is aware of the community’s need to protect children as well as the community’s need not to have abusive, invasive, heavy handed government. You will never hear anything but praise from those who appear before him-Fairness and Justice here we come when the case is in front of Judge Gabaldon. Judge Gabaldon is a sight for sore eyes. He is a cool pool of water in a barren desert.
According to sources, 16 El Paso Times employees were laid off, three in the newsroom, one of them being long time editorial page writer, Charlie Edgren. It will be called an “early retirement.” Sources say Edgren’s last day is at the end of this month.
There used to be a time when every lawn in my neighborhood had a paper on it in the morning. That was a long time ago. The El Paso Times has made it a point not to hire anyone with any talent and when they do, by accident, that person is gone. The reading public hates the El Paso Times and many refuse to buy it on principal. Can you blame us when the paper’s main sources are Susie Byrd, Veronica Escobar, Beto O’Rourke, his father-in-law Bill Sanders, and anyone else the oligarchy dons with a scepter?
In the three in a half years that the scandal regarding El Paso Medical examiner Dr. Paul Shrode was above the table, Charlie Edgren never wrote one word about how bad it is for the community to have a medical examiner who lies about his credentials and under oath. Nor did Edgren write one word about how damaging it is for the community to have sitting county employees run for office while on the county clock or what an outrage it is that El Paso Public Service Board (water untilty) manager, Ed Archuleta, earns over half a million dollars a year, hundreds of thousands more than his counterpart in San Francisco. But what we did hear from Edgren’s limp pen is how much we need to support Woody Hunt’s figure heads (Susie Byrd, etc) and pay more taxes. Thanks to Edgren and the politicians he has promoted, El Paso has the second highest municipal tax rate in the state of Texas.-Edgren’s legacy will be a wildly unpopular, failing newspaper, his own lay off and a corrupt government filled with his picks, not to mention crippling taxes.
Whatever will we do without Charlie Edgren and his invaluable opinions or his political endorsements?
The El Paso Times has insisted on lying to the community and people have grown tired of it. Advertisements are down and so are readers. The paper is pathetically thin every day. Edgren, et. al. have written themselves out of a job.
Today Marty Schladen reported that Stuart Leeds and I have contended that Mayor Cook has “secretly” received money. That is not true. We have never said that and you will find that no where in any statement, record, etc.
What we have said over and over is that we believe that someone, other than the Mayor, is paying the Mayor’s legal fees. The Mayor “secretly” receiving money to pay his legal bills is entirely different from the law firm receiving money from a third party or the law firm donating its services.
We would like a correction.
Also Mayor Cook testified under oath a few months ago to having incurred approximately $85,000 in legal fees. Up to that date, the mayor had not paid those fees. He has now incurred more.
The Mayor’s campaign finance report indicates that he used $2000.00 of campaign money to pay legal fees. The other $83,000 plus of those legal fees are unaccounted for. If the firm is doing the work pro-bono, then Cook did not claim those services as a campaign contribution as he is required to do. If someone else paid the firm, then Cook again needs to report that as a campaign contribution. (Note, Susie Byrd correctly claimed legal services Steve Ortega performed for her as a campaign contribution).
Why was this most obvious point not in your story?
Editor’s Note. This is a letter Stuart Leeds and I wrote to the 34th Grand Jury. The members of the grand jury will only receive the letter if DA Jaime Esparza chooses to give it to them.
January 11, 2012
Foreperson of the 34th Grand Jury
Members of the 34th Grand Jury
El Paso County, Texas
Dear Foreperson and Members of the Grand Jury,
The District Attorney’s office has notified individuals that it will be presenting cases to the grand jury regarding certain former El Paso police officers and their conduct regarding actions taken under the STEP grants.
Some months ago, TXDOT came to El Paso and conducted an audit of the STEP grants. The auditors claim that certain officers were writing tickets not in compliance with the Grants. Those officers were asked to resign. Most of these officers had many years of service on the force with unblemished records. We know of one officer who was a SGT and had 17 years of duty. These officers were called into a meeting where they were accused of crimes and irregularities. They had no attorney representation and no meaningful representation by the police union. They were in shock.
Upon researching the issue, it has become clear that the El Paso Police Department receives Grant money for traffic, DWI, gang prevention enforcement, etc. The terms of these Grants outline goals or more accurately “quotas” that the officer is “encouraged to meet.” For example, the Grants say an officer should write three tickets an hour or an officer shall make one arrest for DWI while working the DWI STEP. TXDOT will say that these are not “mandatory” goals or in plain language QUOTAS and therefore they are not illegal.
Regardless of what TXDOT says, these goals were quotas and were in fact mandatory quotas at the El Paso Police Department. If the officer did not meet the quotas he was discouraged from working the Grant and earning the extra money. The threat was if the police department did not “produce” then TXDOT would not give the Department the Grants. The heat was on the cops.
Year after year, higher ups at the police department told officers verbally and in writing that if they did not produce the quotas they would not be allowed to work the grant. We have enclosed an e-mail, which is one of many, which SGT Jack Mathews (recently retired-August 2011) wrote officers complaining that if they did not produce, they would not work the grant. This policy was well known and an accepted practice at the police department. That’s why it is in writing.
Other accepted practices at the police department by the higher ups were for officers not working STEP to kick a ticket or DWI arrest over to the Grant workers so they could get the credit. Another accepted and approved practice was for an officer to count a ticket he wrote off Grant time as being issued under Grant time. Under the gang Grant, officers would go to regional stations and ask for lists of wanted people and then go round them up even if these people were not gang related. This way they could say they were “working the Grant.” Another accepted, approved and encouraged practice was for officers to work past the Grant time to bring in the “goals” or quotas if they had not met them during the Grant time.
All of the above listed practices were condoned and accepted UNTIL the State came in and audited the records and found tickets written outside Grant times, etc…TXDOT, which proclaims to have clean hands and not to condone “quotas” has threatened the City that if it doesn’t “clean this up” they, TXDOT, will not reissue Grants to El Paso. Now all of a sudden these long-time officers are being run out and facing arrest and criminal charges for doing what was expected and encouraged and demanded of them if they wanted to continue to work under the Grants. It is well known if you don’t make “quota” you will not work the GRANT for long.
TXDOT is a problem as well. The people at TXDOT act like they don’t have a quota because they call their quota system “goals.” Does using one word over another really change reality? What a farce.
As grand jurors you should ask yourselves, “Is this right?” “Am I going to be a part of this?”
You should issue subpoenas to former SGT. Jack Mathews and ask him about his e-mail.
You should subpoena all of the e-mails and communications the City has regarding the Grants and the administration of the Grants and review them. The e-mail we have given you is one of many the City has.
You should ask the DA why he has not notified defense attorneys about the GRANT problems- the Defense attorneys who are handling cases with clients who were arrested under GRANTS by officers accused of wrongdoing. (When we try and use the poor administration of the Grants to defend a client, DA Esparza and the City attorney Kenneth Krohn try and stop us.)
You should subpoena the City Attorney to ask her why she has not sent notices to defendants in traffic court who got tickets under the Grants written by officers being investigated. If something is wrong with the ticket writing, don’t the people who were ticketed have a right to know? If nothing is wrong and the City Attorney is not required to notice the ticket holder, then why is the grand jury, you, investigating the ticket writer?
There are City charts outlining income brought in under the Grant ticket writing vs. non-Grant ticket writing. Follow the money. The money is not free. Every year the city has a budget item that presupposes a certain intake based on ticket writing. How does Joyce Wilson, the City Manager, know in advance what that money will be if not for quotas? Get the City budgets for the past three years and see for yourselves what is going on. Should not the mayor and the city manager and council be responsible for this?
Is this issue not really about the system as a whole? Should not the people in charge of running the GRANTS be held accountable and not the foot soldier?
Isn’t it always the little guy who gets left holding the bag while the problem persists and the money keeps coming in? Rest assured, once these cops take the fall, the City will bring in a whole new fresh crop of cops to write three tickets an hour and nothing will change except we will have made criminals out of good people. There are too many cops being accused of wrongdoing under the Grant for this to not be considered a problem with the whole system, the higher ups and the administrators of the Grants. How is that no one at the police department thought anything was wrong until TXDOT came in? Now the brass is running for the hills and leaving the hapless street cop exposed for following orders.
Please do not indict these good people for implementing department policy. Please ask the hard questions. Please look at the paperwork we have enclosed and ask for your own paperwork. Ask for everything.
Filing Grievances, Request for Courts of Inquiry in Wrongful Conviction and Exoneration Cases
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
On December 12, 2011, writing for Mother Jones, Beth Schwartzapfel and Hannah Levintova published a piece titled “How Many Innocent People Are In Prison?”—a piece based in part on research conducted by University of Michigan Law Professor Samuel Gross. Gross’s research, with the assistance of the New York-based Innocence Projectand the Center on Wrongful Convictions, determined there have been as many as 850 exonerations in this country since the late 1980s. The Innocence Project lists 282 exonerations since 1989 based on DNA evidence alone. Extrapolating from these two figures, Schwartzapfel and Levintova conservatively estimate that 1 percent of the total prison population in the United States have been wrongfully convicted. Put it raw numbers, this means that approximately 20,000 inmates in the nation’s prison system were wrongfully convicted.
“We don’t even have a denominator,” University of Virginia law professor Brandon Garrett told the Mother Jones writers. “But the wrongful convictions we do know about suggest that there’s a big problem.”
Writing in a 2008 paper titled “Frequency and Predictors of False Conviction,” Gross reached the same conclusion as Garrett: “One difficulty in making generalizations about false convictions is that the ones we know about, exonerations, are clearly a small and unrepresentative sample of all false convictions.” Gross added that death penalty cases are the only ones in which false convictions can be accurately measured because they have trial transcripts. Gross’ 2008 paper reported that in the modern era the rate of exoneration is 2.3 percent in capital cases—and using this percentage, the Mother Jones writers reasonably extrapolated that there could have been as many as 87,000 wrongfully convicted people in the nation’s general prison population between 1989 and 2003.
Utilizing data compiled by Mother Jones, the Texas Tribune found, not surprisingly, that Texas leads the nation with 48 DNA exonerations and is third behind Illinois (95) and New York (83) with 78 total exonerations since 1989. In an article titled “No Country For Innocent Men,” which will appear in the Jan./Feb.2012 edition of Mother Jones, Beth Schwartzapfel found that 56 of these exonerations, including five death penalty cases, occurred under the reign of current Governor and presidential candidate Rick Perry, who still maintains that the criminal justice system is working. These figures are scary in light of the fact that 238 executions have taken place under Perry’s governorship—including Cameron Todd Willingham who, according to reputable fire forensic experts, was probably innocent of the arson murders of his three children in December 1991.
Some of these exonerations, both in Texas and across the country, were supported by district attorneys, many of whom had zealously prosecuted the innocent individuals. Take the case of Ernest Ray Willis who was charged in 1986 with the arson murder of two women in Iraan, Texas. He was convicted and sentenced to death the following year. Willis’ conviction and death were overturned by a federal district court in 2004. Pecos County District Attorney Ori White, who did not prosecute Willis, was not comfortable with the original circumstances of Willis’ case. He sought, and secured, a fire forensic report from Austin fire expert Gerald Hurst who, as he had in the Willingham case, concluded the fire in Willis’ case had not been intentionally set. Based on this report, D.A. White supported Willis’ exoneration by saying “the facts of the case exonerate Mr. Willis.”
On the other hand, Navarro County District Attorney John Jackson, who is now a district court judge in Corsicana, rejected the Hurst report out of hand in the Willingham case. Jackson actually told ABC’s Nightline that it was “very possible” and “very likely” that Willingham’s alleged arson murder of his children was some kind of “devil worship thing.” To this day, Jackson rejects all the fire forensic reports—a total of seven—which have concluded, like Hurst, that the fire which killed Willingham’s three children was not intentionally set, and, therefore, was not an arson murder. He believes Willingham deserved to be executed based enormity of his crime, his history of a spousal abuse and the fact that he was likely a devil worshipper.
And, then, there are those prosecutors who vehemently resist the production of any post-conviction evidence which may exonerate an inmate citing procedural arguments. Take the case of Henry “Hank” Williams as an example. Gray County District Attorney Lynn Switzer has fought an unrelenting, albeit losing, battle to keep physical evidence in the Skinner case from being DNA tested—evidence that he and his supporters claim will prove his innocence and point to the real killer.
The facts in the Skinner case are pretty straightforward. On the night of December 31, 1993, Skinner and his girlfriend, Twila Busby, called a friend of Twila’s, Howard Mitchell, and expressed an interest in going to a New Year’s party but needed a ride. When Mitchell arrived at Twila’s residence to pick up the couple, he found Skinner passed out on a couch and could not wake him. Twila joined Mitchell and the pair went to his trailer where the party was in progress. While at the party, Twila was harassed by an uncle, Robert Donnell, with whom she had had an incestuous relationship, who followed her around making rude sexual advances to her. She asked Mitchell to take her home.
Mitchell dropped Twila off at her residence between 11:00 and 11:15 p.m. At midnight a local police officer was dispatched to investigate a stabbing at a house located across the alley from Twila residence. The officer found Twila’s oldest son, Edwin Caler, sitting on the porch at the neighbor’s house. He had a stab wound under his left arm and superficial wounds to his right hand and stomach. He was transported to a local hospital where he died at 12:45 a.m. The police found a blood trail from the neighbor’s house to Twila’s front porch. They found blood smeared on a glass front door and a knife on the front porch. Inside the bodies of Twila and her youngest son, Randy Caler, were found. Twila had been strangled into unconsciousness and beaten at least fourteen times. A blood-and-hair stained ax handle was found near her body. Randy had been stabbed three times in the back as he lay in bed.
The police also discovered a black plastic bag lying between the couch and coffee table. The bag contained a knife and a towel stained with a wet brownish substance on it. The police also found a bloody handprint on the door leading out of Randy’s bedroom and into a utility room. Another bloody handprint was found on the door knob of the door leading from the kitchen into the utility room. A third bloody handprint was found on the knob of the door of the utility room that led into the backyard.
Skinner was arrested at a former girlfriend’s house at approximately 3:00 a.m. He was standing in a closet wearing blood-stained blue jeans and blood stained socks. He told the girlfriend, Andrea Reed, that he had been shot and stabbed, but when she removed his shirt, Reed found only an injury to his right hand, which she sutured. After Skinner told Reed a number of inconsistent stories about the wounds, she tried to call the police but Skinner reportedly threatened to kill her if she did. Post-arrest tests showed Skinner was both alcohol and drug intoxicated that night; that the bloody handprints found in the residence were his; and that the blood found on his clothes were Twila’s and Edwin’s.
Skinner has sought for years to have the following evidence found at Twila’s residence DNA tested: Twila’s fingernail clippings; a rape kit; two knives; a blood-stained dish towel; and a man’s windbreaker with hair and sweat on it. DA Switzer has staunchly resisted those efforts, but just hours before his scheduled executed this past November 9th, the Texas Court of Criminal Appeals intervened and ordered DNA testing of the evidence. Skinner and his supporters believe these tests will prove that Donnell, Twila’s uncle who is now deceased, was the real killer.
Why would DA Switzer not want this evidence tested, especially if would establish the innocence of a man condemned to die? The suspicion naturally exists that Switzer resisted the testing and pushed for Skinner’s execution to prevent the revelation that another Texas defendant had been wrongfully convicted and sentenced to death, this time by her office.
The same suspicion exists about Williamson County District Attorney John Bradley’s conduct in the Michael Morton case. Morton was convicted in Williamson County for the 1986 murder of his wife and sentenced to life in prison. The prosecution theorized that Morton killed his wife after he became enraged because she would not have sexual activity with him on his birthday following a night out with the family. Based upon the food contents in the victim’s stomach, the medical examiner concluded she had been killed in the early morning hours—a time that place Morton in the residence before he left for work around 7 o’clock in the morning. That was the sum of the State’s case against Morton.
However, prosecutors Ken Anderson and Mike Davis kept significant information from the jury: 1) a conversation the police taped with the victim’s mother who said the Morton’s three-year-old son described the attack to her, identified key details of the murder scene, and said his father was not home at the time. 2) The victim’s purse was taken during the crime which contained her credit card; the police had a document showing her Visa card had been found in a San Antonio store—evidence not pursued by investigators. And 3) the police had information that a check made out in the victim’s name was cashed nine days after her murder and the signature appeared to be a forgery. This evidence clearly showed that someone other than Morton killed his wife.
In 2005 the Innocence Project became convinced that Morton was innocent. They launched efforts to have a bloody bandana found at a worksite near the Morton residence DNA tested. Finally, a Texas appeals court intervened and ordered DNA tests be performed on the bandana. The results of those tests not only established Morton’s innocence after he had served nearly 25 years in prison but identified the real killer as well—a suspect who police now believe killed another woman in Austin one year after murdering Morton’s wife. Bradley, who is a longtime personal friend and a close professional colleague of Anderson, bitterly resisted having the bandana tested for nearly six years—just as Switzer did in the Skinner case.
In a rare move, the Texas State Bar announced recently that it had opened an investigation into the handling of the Morton case by all the prosecutors involved. We use the term “rare” because prosecutors are seldom disciplined for misconduct, even when it sends innocent people to prison or to death row. For example, in the case of Randall Dale Adams, in Ex Parte Adams, the Texas Court of Criminal Appeals found that Dallas’s First Assistant District Attorney Doug Mulder suppressed favorable evidence, knowingly used perjured testimony, and deceived the trial court during the defendant’s capital murder trial. That misconduct, which was dealt with in the award-winning documentary A Thin Blue Line, caused Adams to spend twelve years under a death sentence for the murder of a police officer before his conviction was set aside.
What happened to the prosecutor, “Mad Dog” Mulder? Nothing. Dallas Magazinereported that Mad Dog went on to become a criminal defense attorney after turning down an opportunity to become Dallas County District Attorney handed to him on a silver platter by the late district attorney Henry Wade. Mulder, and others in Wade’s office and in the office of Wade’s successor John Vance, considered the misconduct exhibited in the Adams case as a badge of honor. Mulder touted the fact he had sought the death penalty 24 times and had been successful 24 times, obviously using the same zeal he exhibited in the Adams case. Even after all the compelling evidence of Adams’ innocence was put before the court, DA Vance insisted, according to Dallas Magazine, that Adams had been “rightfully and legally convicted,” prompting one of his assistants to defy him by filing a one-paragraph pleading with the court calling for a new trial in the condemned inmate’s case.
Many of the approximately 20,000 innocent people in prison today were put there because of prosecutorial misconduct. The Innocence Project does not give an approximate percentage of “governmental misconduct” in exoneration cases, saying only that “many” do involve such conduct. As we reported in a recent blog, “The Ethical Implications of a Brady Violation,” consistent and thorough research by legal scholars and journalists found only a handful of cases nationwide in which prosecutors have been disciplined for Brady-type violations.
The most recent, and revealing, research in this area was conducted by the Northern California Innocence Project at the Santa Clara University School of law who released a 2009 report titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The Northern California Innocence Project (“NCIP”) examined more than 4,000 state and federal appellate rulings in criminal cases in California between 1997 and 2009 which involved alleged prosecutorial misconduct. In 707 of the cases, the courts explicitly found prosecutorial misconduct while in approximately 3000 cases no prosecutorial misconduct was found; and in another 282 cases the courts did not decide whether the prosecutors actually engaged in misconduct, finding the trials they were involved in were fair. In only 159 of the 707 cases did the courts find actual harm, resulting in a new trial, a new sentencing hearing, a mistrial or certain evidence being barred from use at trial. In the remaining 548 cases the courts upheld the convictions, finding the misconduct did not deprive the defendants of a fair trial.
The NCIP misconduct study clearly shows there is little, if any, professional accountability attached to rogue prosecutors. The study disturbingly shows “that those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.
“Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case.
“Further, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67 prosecutors—11.2 percent—committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five.”
We strongly suspect these alarming NCIP findings, suggesting the lack of disciplinary action in cases of prosecutorial misconduct, would be similar in the remaining 49 states. Most prosecutors will either work in law enforcement for their entire career or will move into private practice upon leaving the district attorney’s office. But a significant number, like Ken Anderson in the Morton case, will seek and secure judgeships. This creates a close-knit fraternity among prosecutors and judges with the often unintentional consequence of being protective of each other. How else do you explain only ten prosecutors in 4,741 disciplinary actions being prosecutors? The very number, standing alone, is shocking and offers prima facie evidence of collusion between prosecutors and judges to cover up the legal profession’s worst kept secret: prosecutorial misconduct has become endemic in our legal profession.
“Prosecutorial misconduct is an important issue for us as a society,” the NCIP said, “regardless of the guilt or innocence of the criminal defendants involved in the individual cases. Prosecutorial misconduct fundamentally perverts the course of justice and costs taxpayers millions of dollars in protracted litigation. It undermines our trust in the reliability of the justice system and subverts the notion that we are a fair society.
“At its worst, the guilty go free and the innocent are convicted. An especially stark example is the death penalty prosecution of Mark Sodersten, a man who spent 22 years behind bars convicted of a murder that the appellate court said he most probably did not commit.
“In 2007, a California Court of Appeal found that the deputy district attorney who prosecuted Sodersten, Phillip Crane, has improperly withheld from the defense audiotapes of his interview with a key witness. After reviewing the tapes, the justices found they contained dramatic evidence pointing to Sodersten’s innocence. Based on this finding, the court vacated his conviction, emphasizing: ‘This case raises the one issue that is the most feared aspect of our system—that an innocent man might be convicted.’
“For Sodersten, the ruling in his case came too late: he had died in prison six months earlier.”
The same thing happened with Timothy Cole here in Texas—he died in prison before his innocence could be established (here).
Phillip Crane, and all the other prosecutors (like those in Louisiana responsible for sending John Thompson to Louisiana’s death row for 18 years) who deliberately withhold evidence of innocence in a criminal case, should be prosecuted as common criminals, if not more so. After all they know the law and chose to deliberately violate it. There is no excuse for withholding exculpatory evidence in any case, much less in a case where an innocent man has indisputably been wrongfully charged with a crime.
So what did happen to Phillip Crane? Absolutely immune from civil liability and granted quasi-official immunity from the California State Bar, Crane was free to seek, and win, the District Attorney’s position in Tulare County in 1992, according to NCIP. And this despite the fact that, according to the California appeals court, he had undermined “the integrity and fairness that are the cornerstone of our criminal justice system” in the Sodersten case. It is prosecutors like Phillip Crane, Mad Dog Mulder and John Bradley who have made misconduct an accepted trial tactic. That’s why we strongly endorse the following three goals recommended by the NCIP in “eliminating attorney misconduct in criminal cases”:
- Expand judicial reporting requirements to mandate reporting of any finding of egregious prosecutorial misconduct, as well as any constitutional violation, even if deemed harmless; identifying in opinions the full names of prosecutors found to have committed misconduct; states’ highest courts of criminal appeals monitoring compliance with judicial reporting and notice obligations and making public the records of compliance; and replacing prosecutors’ current absolute immunity from civil liability with a form of qualified immunity.
- Expand discipline for prosecutorial misconduct under Model Rule 3.8(d) of the ABA’s Model Rules of Professional Responsibility, which have been adopted by 49 of the 50 states, while simultaneously increasing transparency of State Bars’ disciplinary process.
- Attorney-related reforms, such as ethical training for prosecutors and criminal defense attorneys, establishing misconduct procedures and developing exculpatory evidence policies.
Sixteen years ago three authors, C. Ronal Huff, Arye Rattner and Edward Sargarin, published a book titled Convicted But Innocent: Wrongful Conviction and Public Policy(Sage Publications. Inc. 1996). The book was based on ten years of measured, conservative research which outlined not only the frequency and causes for wrongful convictions of innocent people but the tragic consequences that inevitably flow from them. The authors interviewed 188 judges, prosecutors, public defenders, sheriffs, and police chiefs in the state of Ohio to draw the conclusion that as many as 10,000innocent people are wrongfully convicted each year in this country. This number supports Mother Jones’ conclusion that there are currently 20,000 innocent people in the nation’s prison system. While there is no way to precisely determine how many of these innocence cases involve prosecutorial misconduct, the NCIP study offers some indication: the 707 cases of prosecutorial misconduct it identified, out of the 4000 examined, supports an possible prosecutorial misconduct rate as high as a 17 percent in wrongful conviction cases. This would mean that 3400 innocent people are locked up in our country’s penal institutions as a result of prosecutorial misconduct.
Because State Bars have been woefully remiss in examining and sanctioning prosecutorial misconduct, we support the recent move by Michael Morton’s attorney, John Raley, who is working with the Innocence Project, to have a “court of inquiry” hearing to determine the degree and level of prosecutorial misconduct in the Morton case. New York’s Pace University expert on prosecutorial misconduct, Bennet L. Gershman, recently told the New York Times: “I haven’t seen anything like this, ever. It’s an extraordinary legal event.”
We would encourage all attorneys in Texas representing exonerated inmates to follow Raley’s lead and request “court of inquiry” type hearings. We further advocate that each county and state criminal defense attorney association appoint standing committees to file disciplinary complaints with the State Bar about any case in Texas in which prosecutorial misconduct led to the conviction of an exonerated defendant, regardless of the defendant’s prior bad personal or criminal history. Raley’s efforts in the Morton case clearly reveal that criminal defense attorneys have a legitimate, even vital, obligation to not only expose but prosecute misconduct by rogue prosecutors, regardless of their standing in the legal community.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified by the Texas Board of Legal Specialization
El Paso Mayor John Cook sued several El Paso citizens who started a Recall Petition against him and City Representatives, Susie Byrd and Steve Ortega. Cook “hired” attorney Mark Walker of the Cox and Smith law firm. These are blue stockinged lawyers who sit on the 20 th floor of a bank building. They come from the ilk known for charging by the word and not waiting for their money.–Who is paying Walker’s fees, since John Cook has admitted under oath that he hasn’t paid his lawyer a dime?
Attorney for the defendants, Stuart Leeds, asked John Cook on Cross-examination who was paying Cook’s legal fees. Cook said the bill “comes to” him. When asked again who was paying his legal fees, Cook said he “signed the contract with the attorneys.” When asked again who was paying his legal fees, Cook said he was “responsible for the bill.” When asked how much the lawyers had billed him, Cook said over $80,000. When asked how much Cook had personally paid of this $80,000 he said, “nothing.”
Three months and $80,000 worth of work later and Cook has not paid his lawyers a dime out of his own pocket.
Who is paying Cook’s lawyers? Because you know they are not working for free.
Cook’s attorney Mark Walker’s name appeared recently on the letter head of mega-developer and El Paso over-lord, Woody Hunt.