A conviction culture has historically permeated the Harris County District Attorney’s Office. The Brady rule has routinely been raped by its prosecutors by hiding evidence, lying about evidence, using and encouraging false crime lab results, manufacturing evidence, and sending innocent people to prison. Prosecutorial misconduct is a subject matter we have extensively written about here and for which we have received national attention.
Harris County Has History of Convictions at all Costs
Former Harris County District Attorneys Johnny Holmes and Charles “Chuck” Rosenthal so popularized this conviction culture that the county became nationally known as the “epicenter of the death penalty” and a safe haven for prosecutorial misconduct. Just this past July we posted a piece about former prosecutor Kelly Siegler, a protégé of Holmes and Rosenthal, who was found by Harris County District Court Judge Larry Gist to have engaged in 36 instances of misconduct during her 2007 prosecution of David Temple.
And days later, Siegler was accused again of engaging in misconduct in yet another high-profile murder case—the 1994 murder case of Howard Guidry who was convicted and sentenced to death because, as the appeals court that reversed Guidry’s conviction said, she “admitted unlawful confessions into evidence and used hearsay evidence.” Guidry’s attorneys also accused the former prosecutor (and now TNT’s Cold Justice star) of concealing fingerprint and ballistics evidence and changes in witness testimony.
Siegler’s misconduct in these two cases personifies the prosecution model employed by Holmes and Rosenthal—hiding, concealing, cheating, lying, and whatever else it took to secure a criminal conviction.
Different District Attorney, Different Views of Justice
In April 2008, local attorney Pat Lykos handily defeated Siegler for the district attorney’s job. The new DA wanted to end the Holmes/Rosenthal prosecutorial model. So, in 2009, she created the Post-Conviction Review Section to aggressively investigate credible claims of innocence made by defendants prosecuted during the Holmes/Rosenthal era. The Section was responsible for two rape exonerations in 2010—Michael Anthony Green through DNA evidence and Allen Wayne Porter without DNA evidence. Both men were prosecuted by Holmes.
Lykos served only one term as Harris County’s district attorney. She was defeated by Mike Anderson, a retired Republican judge, who died after a courageous fight against cancer after serving only eight months in office. A month into Anderson’s term, the DA’s office invited Rob Kepple of the Texas District and County Attorneys Association to participate in an “ethics” training seminar stressing the need for integrity in prosecutions.
Us Against Them Mentality
In a February 2013 post (which contains the video)on the conservative Big Jolly Politics website, the site’s founder, David Jennings, said the seminar reflect ed an us-against-them “bunker” mindset in the D.A.’s office and was turned into a “whine-fest” by Kepple who called innocence projects the “enemy” of prosecutors. Kepple also accused the Texas Legislature of being out “to get” prosecutors because the lawmakers hate “government employees.”
“Mr. Kepple goes through a whole series of how people cheat in life and it isn’t cheating if you get away with it,” Jennings wrote. “I think his point was to say that prosecutors can’t do that but you’ll have to watch the video to see how bad he made that point. And remember Pedro Oregon? You know, the guy that was killed dead, dead, dead because a bunch of yahoo cops forced a drunk driver to give them the address of his ‘dealer’ and then started shooting for no reason. Yeah, [Kepple] presents that as an example of using Johnny Holmes’ stellar reputation to get away with anything. Just totally bizarre.”
But try as it may, the Harris County District Attorney’s office just can’t shake the Holmes/Rosenthal legacy.
Death Sentence Case Reversed Because Prosecutors Withheld Favorable Evidence
This past June, D.A. Devon Anderson was forced to dismiss murder charges against Alfred DeWayne Brown who was convicted by Rosenthal for the 2003 murder of a Houston police officer and sentenced to death. Brown’s conviction was reversed last November by the Texas Court of Criminal Appeals because Rosenthal’s office withheld favorable evidence from the defense.
And what was that evidence? Brown had always told investigators that he was at his girlfriend’s apartment when the officer was killed and made a call from the apartment. Investigators gathered phone records that indeed supported Brown’s claim that he had made a phone call from the apartment when the officer was killed. Rosenthal’s office did not turn the evidence over to Brown’s defense team.
During a post-conviction proceeding in 2013, a homicide detective found the phone records in a box in his garage. That discovery led to the reversal of Brown’s conviction. D.A. Anderson contemplated a retrial but there was no credible evidence upon which to proceed to a second trial.
As she told reporters following her dismissal of the charges against Brown: “We re-interviewed all the witnesses. We looked at all the evidence and we’re coming up short. We cannot prove this case beyond a reasonable doubt, therefore the law demands that I dismiss the case and release Mr. Brown.”
More Ethical Problems Pop up at DA’s Office
With that Rosenthal headache out of the way, D.A. Anderson now has her own ethical headache to deal with revolving around a 2012 murder case.
Vernon Brooks and Joseph Bailey were indicted for the September 25, 2012 murder of Sergio Saldana. Three former cohorts of the two men testified against Bailey during his trial this past February. The case was prosecuted by one of Anderson’s assistants, Sarah Mickelson. Bailey was convicted based on the testimony of those three cohorts.
It is not uncommon for prosecutors to use cooperating witnesses, and to even compensate them for their testimony. But both the law and ethics unequivocally demand that the prosecution make the defense aware of any compensation or other benefits given to these witnesses in exchange for their testimony.
Prosecutor Failed to Disclose Payments to Witness
According to accusations leveled last month by Brooks’ attorney, Paul Morgan, the three cooperating witnesses who testified against Bailey were paid a total of $5,000 for their testimony and Michelson’s withheld this critical information from the defense and lied to the court about it.
A September 25, 2015 report in the Houston Chronicle says attorney Morgan is now asking the court to dismiss charges against his client because Mickelson “broke the law and violated his client’s constitutional rights.” Jeff McShan, a spokesman for Anderson’s office, said the D.A.’s office is investigating Morgan’s “allegations” and would submit a written response to them in court.
String of Allegations of Prosecutorial Misconduct
Brian Rogers, who wrote the Chronicle piece, said Morgan’s allegations are the “latest in a string of allegations of prosecutorial misconduct at the district attorney’s office.”
Morgan’s allegations are particularly disturbing because Bailey’s trial attorney, Mike Trent, told Rogers that Mickelson said the three cooperating witnesses had not been compensated for their testimony.
“We specifically had a pretrial hearing regarding this subject,” Trent told Rogers. “And Mickelson assured the court that no promises of leniency or other benefit had been made to any of the witnesses.”
The money was paid to the witnesses by an FBI agent who works for a Houston-area gang task force: $3,000 to one witness and a $1,000 each to the other two witnesses. Bailey’s appellate attorney, Lana Gordon, is now saying that Mickelson “almost certainly hid [this] critical evidence and lied to the court.”
“FBI receipts prove Ms. Mickelson’s secret approval of payments of $5,000 to her witnesses within hours of the jury’s verdict in Mr. Bailey’s case,” Gordon added. “The Harris County District Attorney’s Office appears to have conspired with the FBI to hide payment for [the three] witnesses’ testimony.”
Morgan shares the same sentiments. He said Mickelson told him and District Judge Katherine Cabaniss earlier this year that none of the informants had benefitted from their testimony during Bailey’s trial.
Serious, Perhaps Criminal Accusations
These are serious, perhaps criminal accusations. Joanne Musick, president of the Harris County Criminal Lawyers Association, told the Chronicle: “If, after the fact, the star witness gets a deal, it just smacks of impropriety.”
Houston criminal defense attorney Pat McCann added that he was “appalled after examining the documents and called for Mickelson to be fired,” according to the Chronicle article.
Ironically, while all these shenanigans were going on, District Attorney Devon Anderson “promoted” Mickelson to what the Chronicle called a “supervisory position.”
These allegations do not surprise us.
Prosecutors on Ethical Slippery Slope
Experienced attorneys know all too well that prosecutors often suggest that witnesses tell their stories in certain ways, with allusions of benefits they might receive if things go well, and then coach them to deny that any promises have been made. This is a well known dirty trick to get past disclosing “deals” to the defense and keeping these murky arrangements from the jury. So, the recent allegations of hidden promises of future payments are just the next logical step for a prosecutor who has become accustomed to playing close to the ethical line.
The Harris County District Attorney’s Office, like prosecutor offices all over the country, just cannot shake that conviction culture established by Holmes and Rosenthal—a win-at-all-costs culture that has made perjury and cheating the underpinnings of their prosecutorial model.
This is not to say all prosecutors ignore the rules and actively cheat, they don’t, but those that do add to the strain on the public’s already eroding trust of the criminal justice system throughout the country. Those prosecutor’s that intentionally engage in prosecutorial misconduct have forgotten not only that their professional obligation is to seek justice, but also that they are playing with people’s lives.
There should be no quarter given to prosecutor’s who intentionally cross the ethical line. They should lose their jobs, their professional licenses and, in some cases, their liberty.