Harris County Criminal Lawyers Association

Nothing To See Here, Move Along People

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If you’ve been following the David Temple story, you know that Judge Gist found veteran ex-prosecutor Kelly Siegler committed at least 36 instances of misconduct and/or hid evidence. A prosecutor’s duty is to do justice. How can justice be had amongst lies, hidden evidence, and a win at all costs mentality?

Now, lawyers for David Temple have requested the Office of District Attorney, which has accepted no responsibility for prior transgressions by its own, to recuse itself from the continuing legal battle.

Instead of determining whether or not recusal is in the interest of justice, Devon Anderson asks, “Why should I?” In essence she says they have not given her a good reason to recuse her office.

How about Justice? How about Integrity? How about Public Trust? How about Appearance of Impropriety?

We can think of many reasons that seem to escape Ms. Anderson.

Read Ms. Anderson’s response here: 

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Will the Harris County District Attorney Accept Responsibility?

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Our clients have problems.

Despite their denial, the Harris County District Attorney has problems as well.

They want our clients to accept responsibility. Will they as well?

In yet another instance, injustice and an appearance of impropriety permeates the Office of District Attorney for Harris County. Apparently, it seems the prosecutor and the bailiff engaged in a series of conversations and text messages about the jury. The importance of this is two-fold: (1) the bailiff, a Harris County Deputy Sheriff, is an officer and arm of the court who is the only person authorized to speak with jurors and (2) the prosecutor is an officer of the court who is forbidden from talking to the jurors. Granted, the prosecutor did not engage in direct communications with the jurors; however, she did attempt to communicate through the bailiff.

She texted the bailiff saying she wished she knew what the jury was thinking. The bailiff responded saying he would find out. THAT IS INAPPROPRIATE. There is no way to spin this so that any part of that conversation was proper and within the rules that require the court (via his bailiff) and the parties (via the prosecutor) to avoid the appearance of impropriety.

So what’s the big deal? Well, the thing is this is just one of many instances – all seemingly small – which cast doubt on the ability to have a fair trial in Harris County.

When will Devon Anderson accept responsibility? She didn’t in her response to our request about Dan Rizzo and the Alfred Brown case. She didn’t in an inquiry about prosecutor’s Connie Spence and Craig Goodhart threatening witnesses. She hasn’t in her media responses to the Kelly Siegler findings of prosecutorial misconduct. And, she hasn’t here. What will it take?

 

Prosecutorial Misconduct Must Be Addressed

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Sadly, Harris County District Attorney Devon Anderson has declined our request calling for an investigation into former prosecutor Dan Rizzo’s conduct in the Alfred Brown case.

She cites expired statutes of limitations (the time in which a criminal charge or grievance can be brought).

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Though the prosecutor has declined any follow-up, we remain vigilant in our investigation into what appears to be yet another instance of prosecutorial misconduct.

When a person takes steps to conceal their behavior, the statute is tolled, and it seems clear that Mr. Rizzo did just that: he concealed exculpatory evidence, he colluded with a cop to intimidate a witness and then falsely charge that witness in a criminal case, and he used the veil of grand jury secrecy to carry out his witness intimidation.

The State Bar has already established new rules for bringing grievances, even years later, where a prosecutor commits misconduct, and the time for filing the grievance now runs from the time of discovery. So much of this tragedy, while occurring years ago, has just recently been discovered.

This is such a blatant attempt to dodge responsibility that it should, along with her statement today regarding the pending decision about prosecutorial misconduct by Ms. Siegler,* result in the consideration of a possible court of inquiry as former prosecutor Ken Anderson faced in the wake of the Michael Morton tragedy. (*Devon Anderson was quoted as saying, “Any actions such as reopening an investigation into this case would be premature.”)

Prosecutorial Discipline

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Is the bar finally getting more serious with prosecutorial misconduct? Just as we sent our letter to Hon. Devon Anderson (Harris County District Attorney) regarding potential prosecutorial overreaching, media accounts of Charles Sebesta’s disbarment blew up.

Texas Monthly reports that Sebesta was found to have violated no less than 5 tenants of the Texas Disciplinary Rules of Professional Conduct, including:

  • 3.03(a)(l ): “A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.”
  • 3.03(a)(5): “A lawyer shall not knowingly offer or use evidence that the lawyer knows to be false.”
  • 3.09(d): “A prosecutor in a criminal case 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…”
  • 8.04(a)(l): “A lawyer shall not violate these rules, knowingly assist or induce another to do so, or do so through the acts of another…”
  • 8.04(a)(3): “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Charles Sebesta, the District Attorney who prosecuted Anthony Graves, was found to have withheld exculpatory evidence and to have presented false testimony in his effort to convict Anthony and send him to death row. Anthony Graves was ultimately exonerated after spending 18 years on death row, most of which was in solitary confinement.

Coincidentally, HCCLA sent a letter today to Devon Anderson asking her to investigate whether Assistant District Attorney Dan Rizzo committed criminal offenses or disciplinary violations in his role to prosecute Alfred Brown – where it was discovered that favorable evidence was not disclosed and Brown’s alibi witness was badgered by the grand jury until she changed her testimony and withdrew the alibi.

It is time for prosecutors to be held accountable for intentional violations of the law and disciplinary rules. It’s a new age. Change is here.

Download the opinion on lawyer discipline for Charles Sebesta here

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Harris County Criminal Lawyers Association
P.O. Box 924523
Houston, TX 77292-4523
(713) 227-2404