State Argues Failure to Preserve Brady Violation Waives Claims of Innocence

By: Houston Criminal Lawyer John T. Floyd and Paralegal Billy Sinclair


Barry Scheck is co-director of the New York-based Innocence Project—“a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent injustice.” As of May 7, 2012, there have been 290 DNA exonerations in this country, and Scheck has been personally involved in many of them. His name and reputation have become synonymous with fighting “wrongful convictions,” such as the case of Michael Morton who was wrongfully convicted in 1987for murdering his wife and spent nearly 25 years in the Texas prison system before Scheck and others managed to establish his innocence.


On May 6, 2012, the Austin Statesman published an article written by Scheck who lamented the tragic fact that “our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct.” This is an issue we have discussed, and lamented about ourselves, in a number of previous posts.


Pointing out that most district attorney offices are either incapable or unwilling to hold rogue prosecutors accountable for intentional misconduct, Scheck also observed that: “Similarly, relying on judicial monitoring and reporting has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.”


And why has “judicial monitoring and reporting” been such an abject failure. An analysis of the case of Jackie Russell Keeter will provide some insight.


In May 1998, Keeter lived with his partner Eva, their three small children, his father, a babysitter, and Eva’s 8-year-old daughter, J.K., by a previous relationship. One day J.K.’s father, Travis, and his fiancée, Rhonda, arrived unannounced at the Keeter residence asking permission to take J.K. to their home for a summer visit. Eva was not present at the residence when Travis and Rhonda arrived, so Keeter granted the couple permission to take the child out to eat until Eva returned. While dining out, J.K. told her father and Rhonda that Keeter had been molesting her on an almost daily basis, and, in fact, had molested her the day before. Child Protective Services and the sheriff’s department were called and Keeter was indicted on two counts of indecency with a child.


J.K. testified at Keeter’s subsequent trial that the sexual abuse occurred mostly in the afternoon when Eva was away from the residence. Keeter, however, presented defense witnesses who testified it would have been virtually impossible for the sexual abuse to have occurred at the time or manner described by J.K. because Keeter was either away from the residence or someone else was there with him. He worked from 6:00 a.m. till 6:00 to 8:00 p.m., and, in fact, was only at home when Travis and Rhonda arrived because he had been sick in bed for a day and a half. There was no forensic evidence to link Keeter to the abuse. The only evidence against him was the 8-year-old J.K.’s testimony. Keeter’s defense was that J.K. had lied about the sexual abuse allegations out of spite because her mother had told the child she could not spend the summer with her father. Despite the highly suspect evidence against him, Keeter was convicted by a Hamilton County jury and sentenced to life imprisonment. A child’s testimony about sexual abuse almost always trumps logic and reason in Texas, leading to many miscarriages of justice.


Several weeks after the trial, Travis returned J.K. to Eva, telling his former partner that the child had become unmanageable and that he and Rhonda were no longer getting along because of the child’s misbehavior. Later that day J.K. told Eva she had made up the entire sexual abuse story because, as the defense had alleged, she was “mad” because Eva would not let her spend the summer with Travis. The child told her mother, “I lied … I wanted to go and stay with daddy and you wouldn’t let me.”


Accompanied by Travis and Rhonda, Eva immediately took J.K. to Keeter’s defense attorney at which time the child gave the attorney a signed affidavit recanting all the sexual abuse allegations she had made against Keeter. Travis and Rhonda also told the attorney that they had never believed J.K.’s allegations, and, in fact, had told the prosecution they thought the child was lying.


Defense counsel promptly filed a motion for a new trial, raising two issues: J.K.’s recantation and the prosecution withholding victim impeachment evidence given to it by Travis and Rhonda, both of which violated Keeter’s due process right to a fair and impartial trial. At a subsequent hearing on the motion, Rhonda testified she  never believed J.K.’s accusations because she “kept changing her story one too many times … She will say he did it, then if we asked – talked about it, she’d say he didn’t do it or I never said that. She just wasn’t consistent with her story.” Although she admitted her relationship with J.K. was not good, Rhonda explained: “I was not going to tolerate her lying, being dishonest, being disrespectful to other people … I told [Travis] he either gets her under control to where she minds and listens, not throw fits, and not hit me, be mean to me or she can go back home to her mother.” In response to a defense attorney request about her experience with J.K., Rhonda indicated that J.K. “lies a lot.”


It was this intermingling of the newly discovered recanted testimony and the Brady impeachment statements in the new trial motion that proved to be a bone of contention throughout the appellate proceedings in Keeter’s case. The trial court denied the motion, resting its denial primarily on its belief that J.K.’s recantation was not credible because the visit by Travis was unexpected and the child had not seen her father in two years.


Keeter presented these issues on appeal to the Tenth District Court of Appeals, sitting in Waco. The appeals court in April 2001found the trial evidence, as well as the evidence presented at the motion for new trial hearing, “cast substantial doubt on the child’s accusations of abuse by defendant.” Because the court found that the evidence did not support the trial court’s finding that the victim’s recantation was not credible and reversed Keeter’s conviction on this issue alone, it did not address the Brady issue that the prosecution had withheld from the defense Travis and Rhonda’s statements expressing doubts about the child’s sexual abuse allegations. The court, however, did warn that “such evidence was highly important to the defense.”


Prosecutors did not heed the warning. They knew they had deliberately withheld evidence that would have impeached the child’s testimony and almost certainly would have resulted in Keeter’s acquittal. But just as they were willing to “convict at any costs,” they were equally determined to preserve what the appeals court had strongly indicated was a wrongful conviction of an innocent man. Prosecutors sought, and secured, review of the Tenth District reversal order in a more receptive environment of the Texas Court of Criminal Appeals (“CCA”).


The CCA faced the sole issue of whether the trial court had abused its discretion by denying Keeter’s motion for a new trial based on newly discovered evidence under Article 40.001 of the Texas Code of Criminal Procedure which provides that: “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.”


In May 2002 the CCA in Keeter’s case, as it has consistently done in prior cases, held that a defendant  moving for a new trial based upon newly discovered evidence must satisfy a four-part test: (1) the evidence must have been unknown or unavailable to the defendant at time of the trial; (2) the failure to discover or obtain the new evidence is not due to a lack of diligence by the defendant; (3) the evidence is admissible, and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and would probably produce a different result at a new trial. The fourth requirement, the evidence must be “probably true,” attaches the prerequisite that the evidence also be material.


The CCA reduced its review to what it perceived as the State and Court of Appeals being “at odds over the extent of a trial court’s discretion to believe or disbelieve a newly discovered recantation.” The State argued that the trial court has absolute discretion in such matters based on its “evaluation of credibility and demeanor, to disbelieve the recanted testimony.” The Court of Appeals, however, held that while the trial court enjoys broad discretion in such matters, a special rule should apply requiring the trial court to have “some basis in the record for disbelieving the recantation.”


The CCA sided with the State, even though it admitted the case law on the issue was unclear. The court offered this observation about the court of appeals’ position: “Such bases include, but are not limited to: evidence that the recanting witness was subject to pressure by family members or to threats from co-conspirators, evidence showing that part of the recantation to be false, circumstances showing that the complainant recanted after moving in with family members of the defendant, and where an accomplice recants after being convicted.”


The CCA then concluded there were a number of bases in the trial record to disbelieve J.K.’s recantation. The court reversed the court of appeals decision and remanded the case back to the appeals court for “further proceedings” consistent with its decision on the Brady issue.


In January 2003, the appeals court ruled that the statements Travis and Rhonda provided to the prosecution were “material” to the impeachment of J.K.’s credibility and critical to the defense theory that the child had fabricated the sexual abuse allegations; and that had those statements been disclosed to the defense, “the result of the proceeding would have been different.” The appeals court once again reversed Keeter’s conviction and remanded the case for a new trial.


This decision apparently didn’t set well with the State. Prosecutors sought, and secured, yet another discretionary review. This time prosecutors argued that Keeter had not properly preserved the Brady issue for review. This procedural maneuver is so typical of the “win at any costs” prosecutors. Here is a case here where prosecutors were more than adequately noticed that probably an innocent man had been convicted because of a lying, spiteful child and because the prosecution had withheld critical information that would have impeached the child’s false testimony. That should have been enough for an honorable, ethical prosecutor to abandon any further appellate review, re-try the case with all the evidence disclosed, or dismiss the charges against the defendant. Not in this case. The prosecution was determined to keep Keeter shackled to a wrongful conviction and a life sentence.


In response to this maneuver, the Court of Appeals withdrew its January 2003 opinion and substituted it with a forceful decision on April 3, 2003. The appeals court this time specifically informed prosecutors that they had ethical duty to disclose the Brady material and that Brady violations can never be waived for failure to preserve. The appeals court noted that while this specific issue had never been addressed by the CCA, the U.S. Supreme Court has implied that Brady claims are “absolute rights” that cannot be waived. The court of appeals said such a rule “follows logic and common sense” and that “it makes little sense to require the defendant to preserve by objection the non-disclosure of material to which he is entitled without making a request and which the prosecution has an affirmative duty under the Constitution to turn over.”


The court of appeals said that “disclosure by the prosecutor rises to the level of a fundamental systemic requirement of a fair trial [and] is the [reason] that disclosure is required by both statute and rules of ethics.” The court cited Article 2.01, Texas Code of Criminal Procedure, which provides: “Duties of District Attorneys … It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”


Prosecutors in Keeter’s case violated this statutory mandate: they placed a premium on convicting, and maintaining that conviction, over seeing that “justice is done.” They suppressed facts which, according to the court of appeals, would have established Keeter’s innocence. Such conduct also violates the ethical duties spelled out in Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct, which state that prosecutors in criminal cases shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal …”


The court of appeals also quoted with approval the following observation made by the U.S. Supreme Court in 1935 in Berger v. United States: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”


Not only was the State intent on keeping Keeter behind bars for a crime he probably did not commit, the trial court possessed that intent as well. After the appeals court reversed his conviction, Keeter filed a motion asking the trial court to set bail and later file a necessary motion for a bench warrant. The trial court refused to rule on the motion for bench warrant. Keeter was forced to apply for a writ of mandamus with the court of appeals. The appeals court on June 25, 2003 ruled that Keeter was indeed entitled to bail under Article 44.04(h), Texas Code of Criminal Procedure, and held that a writ of mandamus would issue against the trial court if it did not rule on Keeter’s motion for bench warrant.


Judge James E. Morgan, Judge of the 220th District Court of Hamilton County, filed a request that the appeals court “reconsider” its June 25th decision compelling a ruling on Keeter’s mandamus petition. Judge Morgan argued that for a party to obtain mandamus relief, he must establish that (1) “the act sought to be compelled in purely ‘ministerial’’; and (2) “he has no other adequate legal remedy.” An act is not “purely ministerial” if the facts which form the basis for the mandamus petition are in dispute.


The appeals court agreed with Judge Morgan, finding: “The parties dispute whether Keeter has presented in sureties to Respondent [Judge Morgan] for his approval. Because of this factual dispute, Keeter is not entitled to the relief sought.”


Nearly two years later, April 6, 2005, the CCA once again seized the opportunity to reverse the court of appeals, concluding that Keeter had not preserved the Brady violation for appellate review. The CCA specifically held:

“The State argues that the appellant did not preserve for appellate review his Brady claim because the appellant did not mention Brady in his motion for new trial or during the hearing on the motion. Also, the State points out that the trial court did not mention Brady in its order denying the motion.


“The appellant argues that the claim was preserved for review because the Brady allegations were apparent from the motion and from the hearing on the motion. The appellant says that the Brady material was intertwined with the recantation evidence and that the State never objected to the scope of the hearing.


“Because of the nature of the appellant’s complaint on appeal–that the trial court erred in denying his motion for new trial–he must have raised the Brady complaint at some point during the motion for new trial proceedings to preserve the complaint for appellate review. In this case, the appellant was required to make the trial court and the State aware of his complaint before raising it on appeal: The trial court cannot be said to have erred in denying a motion for new trial on a basis that was not presented to it.”


The CCA justified this conclusion for the following reasons: “The evidence that the appellant claims preserved the Brady issue for review were relevant to the appellant’s actual innocence claim. The fact that Rhonda and Travis claimed to tell the prosecutor before trial that they thought that the complainant was lying supported the complainant’s recantation because it was some evidence, purportedly existing before the trial, that was consistent with the recantation.


The appellant did not mention Brady in his motion or during the hearing on the motion, and did not include any Brady-related cases in his post-hearing submission. And a Brady claim requires that the defendant show by a preponderance of the evidence that evidence was withheld, that it was favorable to the defense, and that the evidence was material.”


Let’s put this in real time perspective. The prosecution withheld evidence, the evidence was material, yet prosecutors are absolved of their ethical and statutory duty to disclose this evidence and the result: an innocent man must remain convicted and in prison for the rest of his life because his attorney did not mention “Brady” in his motion for a new trial. Thus, a claim of “actual innocence”—a claim the courts of appeals found legitimate on two occasions—is casually disregarded because the innocent man’s attorney made a procedural error. Bottom line: the CCA said it was defense counsel’s fault that a probably innocent man must remain in prison, not the offending prosecutor who withheld the evidence.


What is tragic about the CCA’s April 2005 appeal decision is that on October 11, 2006 the court confronted a post-conviction habeas corpus application filed by Keeter. In an unpublished opinion , the CCA issued this order:


“In this writ, Applicant contends that his conviction was obtained by the failure of the prosecution to disclose favorable evidence to the defense, in violation of Brady … The trial court has obtained affidavits from both trial counsel and the trial prosecutor responding to Applicant’s claims. However, the trial court did not make any factual findings or recommendations as to the merits of Applicant’s claims … the trial court is the appropriate forum for findings of fact. Because the issue turns on determinations of credibility and the weight of the evidence at trial, the matter will be remanded for such findings.


“The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing…


“The trial court shall make findings of fact as to whether the prosecution was aware of evidence favorable to the defense, and if so, whether the prosecution failed to disclose such evidence prior to trial. If the trial court finds that the statements of Rhonda and Travis King constituted favorable evidence, the court shall make findings as to whether their statements were material, such that there is a reasonable probability that, had the statements been disclosed to the defense, the result of the proceedings would have been different. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.


“This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.”


The legal trail goes cold after this habeas order. We do not know if Jackie Russell Keeter was granted a new trial and set free, or if he pled guilty to a reduced charge and received a sentence less than life, or if he is still serving the life sentence in the Texas prison system. But what we do know is that the prosecution withheld material Brady evidence that, had it been disclosed, Keeter would not have been convicted and sentenced to life imprisonment—a conclusion reached by a majority of Tenth District Court of Appeals judges who heard the case.


Yet through all these convoluted legal proceedings while Keeter served a life sentence, not one word was mentioned about referring the prosecutors who withheld critical evidence supporting a claim of actual innocence to the State Bar. At the end of the day, the Texas Court of Criminal Appeals chose to fault the defense attorney for sending this probably innocent man to prison for life—not the prosecutor who made the intentional decision to withhold Travis and Rhonda’s statements which went to the very credibility of his primary witness.


We have all seen children like J.K.—behavioral problems, constantly lying, being mean to other kids, disrespectful to adults, and worst of all, vindictive and spiteful. Based on this child’s testimony alone—testimony not even believed by her parents or immediate family—a man was convicted and sentenced to life imprisonment. The prosecution not only sought the conviction but did everything within its power to maintain it.


And we call this justice? A man convicted and sentenced to life imprisonment based on the testimony of a lying child who admits under oath that she falsely accused the man of a horrific crime?


The Keeter case, in our opinion, is a travesty of justice—and some prosecutor in the Hamilton County District Attorney’s office should be held accountable for withholding evidence that would probably have established his innocence, as reported by the Tenth District Court of Appeals.


By: Houston Criminal Lawyer John T. Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization

Keeter v. State, 97 S.W.3d 709, 2003 Tex. App. LEXIS 156 (Tex. App.—Waco, Jan. 8, 2003). This decision was withdrawn by the Tenth District Court of Appeals and a new decision delivered on April 3, 2003 under Keeter v. State, 105 S.W.3d 137, 2003 Tex. App. LEXIS 2961 (Tex. App.—Waco, April 3, 2003).

Ex parte Jackie Russell Keeter, 2006 Tex. Crim. App. Unpub. LEXIS 273 (Tex. Crim. App. Oct. 11, 2006).