DA Announces Policy of Hiding Brady, Potentially Exculpatory Evidence


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We have become convinced that the only way the Williamson County District Attorney’s office will operate in a lawful and ethical manner is for the State Bar to assign an ombudsman to oversee its day-to-day handling of criminal prosecutions. The behavior of this office in the Michael Morton case has already triggered four investigations, including one by the State Bar. Grits For Breakfast recently carried yet another report, which was first reported by Wilco Watchdog, concerning allegations of prosecutorial misconduct. This time the misconduct charges involve Assistant District Attorney Tommy Coleman who withheld exculpatory evidence in a 2010 theft case.

Travis County attorney Amber Vasquez Bode was representing the theft case client. She told YNN that evidence was emailed to District Attorney John Bradley’s office three days before the end of her client’s trial. “They only give us the evidence that they hand us, we’re not given the file and copied it” Bode said. “In fact, we’re not allowed any copies of anything.”

When Bode learned about the withheld evidence, she questioned ADA Coleman about it, to which he replied: “It’s too late now, your guy already pled.” Bode’s said her client probably would have been acquitted had the evidence been timely disclosed.

When asked about the decision by ADA Coleman to withhold the emailed evidence, DA Bradley, according to YNN, said his assistant was following office “policy” not to disclose the evidence. A “policy decision” to withhold potentially exculpatory evidence! It is difficult for us to wrap our minds around a “policy” to send innocent people to prison rather than disclose evidence that could exonerate them.

“You can’t stack the deck, and you can’t hold back evidence, and those are fundamental principles that have to be adhered to,” attorney Vasquez said about the “policy.”

In a motion for a new trial, Vasquez said she became aware of the withheld evidence during discussions with jurors by her and Coleman after the conviction. Two jurors said they wished they had seen the evidence because “it would have most likely been exonerating.”

Coleman has a history of mocking exculpatory evidence that indicates innocence. Grits reported that during one court hearing in the Morton case, Coleman was overheard mocking Morton’s attorney, John Raley, saying in a demeaning tone: “Ewwww! Bloody bandana! Bloody bandana!” It was that bloody bandana, which Bradley and his office fought so hard not have DNA tested, that ultimately not only established Morton’s innocence but identified the real killer.

Coleman, who was hired by Bradley in 2008, has political ambitions of his own. Earlier this year he explored the notion of running for the County Attorney’s position, but when he discovered there was no real support among the local power brokers for his candidacy, he stepped aside and joined forces with another candidate, Hal Hawkes, who, incidentally, also happens to be under investigation by the State Bar. As the old saying goes, birds of a feather flock together,” including buzzards.

Grits made the following observation concerning prosecutorial misconduct cases: “The problem with the Brady requirement for prosecutors to produce exculpatory evidence is that it assumes good faith and so imposes no penalties for non-compliance beyond—at the very worst—ordering a new trial (as we discussed here). For most prosecutors, that’s plenty of incentive to follow the rules. But for those willing to cheat to win, prosecutors are immune from civil penalties and except in rare events, face no professional consequences from the state bar disciplinary committee as a practical matter (though that group has announced they’re investigating the Morton case). There might be ways to tweak the law to make prosecutors more accountable for overt misconduct, but as it stands, public disapprobation is about the worst penalty they face, even when the misconduct was willful and egregious.”

The Center for Public Integrity in 2003 conducted a three-year study of 11,452 cases of prosecutorial misconduct reviewed by appellate court judges. The study found that more than 2,000 of the cases resulted in “dismissal of charges, reversal of convictions, or reduction of sentences.” The judges found prosecutorial misconduct in several hundred other cases, but affirmed the convictions under the “harmless error” doctrine—a judicial policy of recognizing a trial error but excusing it because they believe a guilty verdict would have been returned absent the error.

But as Angela J. Davis, American University Washington College of Law, said in an excellent article, “When Good Prosecutors Go Bad: From Prosecutorial Discretion to Prosecutorial Misconduct,” about the Center for Public Integrity’s study: “The cases examined likely merely scratch the surface because they reflect only cases in which misconduct was discovered and litigated. The most significant prosecutorial practices at which misconduct might occur—charging decisions, plea bargaining, and grand jury proceedings—occur behind closed doors. More than 95 percent of all criminal cases result in guilty pleas, where there is no opportunity to challenge misconduct since defendants give up most of their appellate rights when they plead guilty. Further, it often is practically impossible to discover misconduct because prosecutors often place deadlines on plea offers that make it impractical for defense counsel to investigate adequately before their clients plead guilty.”

Many of the cases of prosecutorial misconduct—and we have no way of knowing even an approximate percentage—involve a rogue prosecutor who does not want to lose a particular case. But the Williamson County District Attorney’s office is different. It is the only prosecuting agency we’ve heard about which makes it an official “policy” not to disclose potentially exonerating evidence. We find this policy nothing short of criminal. While prosecutors have a duty to protect society from wrongdoers, they have a more compelling duty to serve the interests of justice. Justice is certainly not measured by knowingly sending innocent defendants to prison or knowingly withholding information that keeps them in prison after it has been discovered. Prosecutors cut from this cloth need to be disciplined, and in egregious cases, prosecuted, convicted, and sent to prison. We can only hope that the State Bar’s investigation in the Michael Morton case will curb the lawless prosecutorial tactics endemic in the Williamson County District Attorney’s office.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization