Tuesday, April 23, 2013

And Therein Lies the Problem

I remember back in 2006 when Craig Watkins won the position of Dallas County District Attorney.  There was talk about his new post-conviction integrity policy and his going after prosecutors who had failed to disclose Brady material.

I was a prosecutor back then and I recall thinking that the newly elected D.A. seemed a lot more interested in prosecuting prosecutors than he was in prosecuting defendants.  My fellow ADAs and I talked about how tense things must be in Dallas -- the mandate had changed and the prosecutors were the new bad guys.  We felt bad for the prosecutors up there who suddenly had to sweat someone going over their old trial files and maybe prosecuting them criminally for mistakes they had made.

I emphasize the word "mistakes" because that was what we -- the rank and file prosecutors of Harris County -- focused on.  I don't believe that any of us thought in terms of intentional acts done to hide things.  We thought about evidence that a police officer hadn't told us about.  Or something that we thought a defense attorney had seen in an open file that we failed to give notice of.

When we heard about what Craig Watkins proposed to do when he became District Attorney, we were offended at his ideas.  Why?  Because we failed to see that what Watkins was talking about when he wanted to go after prosecutors who failed to disclose Brady was going after prosecutors who intentionally hid exculpatory evidence -- those who were unabashed about cheating to win.

Nobody wakes up in the morning thinking they are going to go out and try their best to do the wrong thing, so the idea of a prosecutor who deliberately cheated and designed to do the wrong thing was truly lost on us.

Surely, such a creature did not exist.

Sadly, in the wake of cases like Anthony Graves and now Michael Morton, we've come to learn that such creatures do very much exist.  More importantly, last Friday, we saw that a Court of Inquiry recognized that as well -- and that something needed to be done about it.

Unlike Charles Sebesta, who seems to have escaped unscathed for what he did to Anthony Graves, a Court of Inquiry held former District Attorney and current Judge Ken Anderson accountable for his actions in the Michael Morton murder case.  Judge Louis Sturns handed down the ruling against Anderson, which led to Anderson being arrested and booked in.  In his Findings of Fact and Conclusions of Law, Judge Sturns acknowledged that the probable cause he found on Anderson's cases were more than likely outside of the statutes of limitations, but asserted that those were defenses that could be raised later.

That, in my opinion, may be the most awesome thing that Sturns did.  He knows that these charges will more than likely be shot down as untimely, but he made the finding anyway.  It's kind of like the judicial way of saying, "I'm finding Probable Cause even though the Statutes of Limitations may have run because . . . screw you for what you did, that's why."

Good for Judge Sturns.

If you want to understand the full effect of Judge Sturns rightfully ruling the way he did, just look to paragraph 42 in his conclusions of law, where he noted:
Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty.
And that's just frightening.

As I've told laymen before in explaining Brady, the problem with prosecutors who don't turn over Brady usually lies with them not finding the evidence in question to be credible.  For instance, if a murder happens on a corner and 19 witnesses point out the Defendant, that's fine.  But if the 20th witness says that the Easter Bunny did it, that sounds ridiculous, right?

It's still Brady.

Ken Anderson (and Charles Sebesta before him) believed so much in the guilt of the person being prosecuted that he found any evidence to the contrary to be unreliable, and therefore not Brady.  Sadly, Anderson is now a judge and apparently still holds to that belief.

The bottom line is that back in 2006, I was scared of what Craig Watkins was doing.  I thought he was going to criminalize prosecutors who might have made mistakes.

I didn't believe in creatures like Charles Sebesta and Ken Anderson back then.

I sure as hell do now.


Anonymous said...

Knowing judge Anderson from practicing here, I can tell you he has no remorse for what he did.

Anonymous said...

The Judge who has the jurisdiction to order Charles Sebesta to a court of inquiry is Judge Reva Townslee-Corbett. Her father was the trial Judge in both Robert Carter and Anthony Graves's trials.

Anonymous said...

WTHeck are you trying to say? On the one hand, you say it's bad. On the other you praise it. I'm confused.

Anonymous said...


At least some of you have been trying to convince you that these people existed.


Anonymous said...

Great editorial Murray!

Anonymous said...

Funny thing about "little mistakes" they cause much havic in people's lives, whether they were intentional or not....those who choose this profession should all have a flashing warning sign overhead reminding them to check and recheck their methods since we are talking about people's lives here.

Anonymous said...

Wherein lies the problem? That you didn't see this as a real thing despite all the evidence to the contrary?

Anonymous said...

This happens often. Egos get involved. Lawyers, including prosecutors, want to win and they cheat. Don't disclose evidence, violate the rules of evidence, violate The Rule, have witnesses answer non-responsively. One must be delusional or deliberately ignorant not to see it.

Anonymous said...

When I was a prosecutor with the office in the 80s I always made it a practice to disclose anything that looked anywhere near exculpable whether I believed it was or not. On one occasion I was trying a defendant for one of two aggravated robberies of supermarkets for which he was charged. Witnesses for both of the cases were present in the courtroom, one of whom, a deputy constable witness to the case that was not going to trial, who approached me and told me that the defendant was not the man who committed the second robbery. I immediately afterward informed defense counsel and gave him the witness info. It worked out well because in the trial of the second case I let the defense call the deputy to testify, which then opened the door for us to introduce evidence of the first robbery as an extraneous. The prosecution profited from doing the right thing. Your job as a prosecutor is to get the violent criminals, at least, off the streets. In addition to the injustice of convicting an innocent person, it obviously serves nobody's interest if the wrong person goes to jail.

sdharms said...

If you didnt know prosecutors do that all the time -- withhold Brady material -- then you are a fool. You should try being a defense attorney for awhile and you will see.