JOHN T. FLOYD LAW FIRM
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Comments on Current Events In Criminal Law
April 07, 2008
BRADY AND THE ROSENTHAL SCANDAL
Houston Criminal Attorney John T. Floyd Discusses the Shadow of the Scandal, Damaged Reputation of D.A’s Office and Concerns of Failure to Disclose Evidence Favorable to the Accused
Charles “Chuck” Rosenthal is no longer the District Attorney of Harris County. Rosenthal was forced to resign recently in the wake of a scandal that disclosed he had used his office computer to send and receive controversial emails with a former intimate partner and D.A. employee. There were also charges that the former DA received racially insensitive and sexually explicit e-mail from friends, including the husband of one of his most controversial assistant district attorneys.
This “email scandal” not only revealed obvious examples of official misjudgment but a disturbing attitude of official wrongdoing that will haunt the District Attorney’s office for a long time.
Some Houston criminal defense attorneys are now asking whether there are emails that indicate the District Attorney’s office sought the death penalty in certain cases for racial or other improper motives.
In light of the D.A. scandal and a recent Fifth Circuit Court of Appeals case, documenting another D.A.’s failure to reveal impeachment Brady material, it’s a legitimate question that prompts yet other inevitable questions:
Has there been a knowing use of perjured testimony by the District Attorney’s office, especially in cases involving co-defendant testimony or testimony by Houston Crime Lab forensic experts, to secure criminal convictions?
Has there been a suppression of favorable evidence in violation of the Brady rule after timely defense counsel requests for disclosure of such evidence?
Houston criminal lawyers will examine their case files to determine if there is even a remote possibility that the District Attorney’s office engaged in such prosecutorial misconduct. They should. The professional integrity of the district attorney’s office lays discarded and disgraced because of a personal and professional arrogance of “win at all costs.” Defense attorneys can no longer blindly accept that the District Attorney’s Office responded in “good faith” to the pretrial Brady discovery motions filed under Chuck Rosenthal’s tenure.
Brady material consists of exculpatory or impeaching information that is material to the guilt or innocence or to the punishment of a defendant. The term comes from the US Supreme Court case, Brady v. Maryland in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process. Following Brady, the prosecutor must disclose evidence or information that would prove the innocence of the defendant. Evidence that would serve to reduce the defendant's sentence must also be disclosed by the prosecution.
A recent ruling by the Fifth Circuit Court of Appeals should encourage criminal defense attorneys as they reexamine those cases whose convictions were obtained almost exclusively by co-defendant testimony, especially where the district attorney’s office said there was no “agreement” in place for that testimony. See: Tassin v. Cain, 2008 U.S. App. LEXIS 3208 (5th Cir. Feb. 14, 2008).
The facts of the Tassin case could easily be applicable to any number of Houston, Harris County capital convictions, or even non-capital conviction. Robert Tassin was convicted in Jefferson Parish, Louisiana, for capital murder and sentenced to death in May 1987. Id., at LEXIS 10. His capital conviction was based primarily on the testimony of his wife, Georgina, who told jurors that Tassin had planned to commit the armed robbery in which the victim was killed. What she didn’t tell the jury was that she had been led to believe by prosecutors that she would receive a ten-year sentence in exchange for her testimony. Id., at LEXIS 2. The background facts of the Tassin robbery/murder were set out by the Fifth Circuit:
“Wayne Stagner and Eddie Martin worked on a Mississippi tugboat. When they completed a shift one night, they met a young woman named Shirley, Sheila, or Shelia Mills at the Shady Lady Lounge in Louisiana. Martin, Stagner, and Sheila had several rounds of drinks and then drove away from the bar in an attempt to find cocaine to buy. Martin drove, Stagner rode in the passenger's seat, and Sheila sat between them. After stopping at another bar, where they found no cocaine, Mills suggested that they stop at the home of Georgina and Robert Tassin. The men agreed, and Sheila went inside. Georgina later testified that while Martin and Stagner were waiting in the car, the Tassins and Mills hatched a plan to rob Martin and Stagner. The Tassins also informed Sheila that they did not have cocaine but they had Dilaudid, and that they would provide Sheila with the drug if she could get enough money from Mills and Stagner to pay for Dilaudid for the group. Mills emerged to ask Martin for money in exchange for sex. She re-entered the Tassins' home, where she paid the Tassins and they all injected Dilaudid. Mills re-emerged from the home, this time with the Tassins.
”The five individuals drove elsewhere, allegedly to look for more drugs. They stopped at another home, where the State argued that the Tassins borrowed a gun and Robert said that he obtained needles. While driving back to the Tassins' home, Sheila asked Martin to stop the car under a bridge because she was going to be sick. She exited the car. Robert claims that at this point, Stagner pointed a gun at him, demanded drugs and money, and wrestled with him. During the tussle, Robert got possession of Stagner's gun and shot the gun in self defense, wounding Stagner and killing Martin. Stagner, on the other hand, claimed at trial that Robert shot from the back seat in a surprise attack on Stagner and Martin.” Id., at LEXIS 2-3.
The trial court severed the cases of Georgina, Robert, and Mills. Although indicted for first degree murder, Georgina pled guilty to armed robbery and was given a ten-year sentence. Besides Georgina, Stagner also testified at Tassin’s trial while Mills did not testify. Id., at LEXIS 3-4. Tassin’s counsel moved before trial for the State to disclose any information it had any information on potential “deals” made in exchange for Georgina’s testimony. Defense counsel’s motion requested:
“[t]he existence and substance, and the manner of execution of fulfillment, o[f] any promises, agreements, understandings, or arrangements, either oral or written, between the Government and any prosecution witness or informant or cooperating defendant or his or her attorneys or to their representatives, wherein the government has agreed … c. To recommend leniency in sentences for any crime or crimes for which he or she is convicted: d. To recommend a particular sentence …. To make any other recommendations or benefits or to give any other consideration to him or her.” Id., at LEXIS 4, FN 2.
The State responded that it had “no information” on any deal and allowed Georgina to tell the jury that “no promises” had been made in exchange for her testimony. Id. At the trial neither Tassin nor his attorney were aware that Georgina had a favorable deal in place. She told the jury she faced the possibility of a 5 to 99 year sentence for armed robbery. Tassin learned about his wife’s deal when a fellow inmate sent him a letter the friend had received from Georgina. The friend wanted Tassin to know that his “pen pal” letters to Georgina were “friendly and not amorous.” That letter contained information about the favorable deal Georgina had received from the state. Id., at LEXIS 4.
Supported by the friend’s letter and post-conviction testimony from Georgiana and her attorney indicating that the attorney had discussed “a deal with the court,” Tassin filed a post-conviction application alleging a violation of his Fourteenth Amendment due process rights. The state court denied the application, ruling that Tassin had failed to prove that existence of an “arrangement.” Tassin then sought federal habeas corpus relief pursuant to 28 U.S.C. § 2254. The U.S. District Court granted habeas relief and reversed Tassin’s conviction. See: Tassin v. Cain, 482 F.Supp.2d 764 (E.D.La. 2007). The district court based its decision on two basic premises: First, the state court had erroneously required Tassin to show that the trial court had “promised” Georgina a lenient sentence; and, second, the state court’s ruling was “contrary to federal law because it applied a more stringent standard than the one established by Supreme Court precedent.” Id., 482 F.Supp.2d at 775.
The State appealed. The Fifth Circuit was compelled to examine the threshold question of how the Anti-Terrorism and Effective Death Penalty Act applied to the case. The appeals court held:
”Robert Tassin filed his federal habeas petition on January 18, 2005, so AEDPA applies. Under AEDPA, ‘The state court's factual findings are presumed to be correct, and the habeas petitioner has the burden of rebutting that presumption by clear and convincing evidence.’ In reviewing a state trial court decision, a district court may grant a habeas writ only if the court's decision was contrary to or an unreasonable application of federal law or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Id., at LEXIS 14.
A state court decision is contrary to clearly established Supreme Court precedent if: (1) "the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." See: Williams v. Taylor, 529 U.S. 362, 406 (2000). See also: Id., at LEXIS 14-15.
The U.S. District Court relied upon three clearly established precedents to reverse Tassin’s conviction and death sentence: Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959); and Brady v. Maryland, 373 U.S. 83 1963). The district court found that while there had been no “firm promise” between the State and Georgina, there had been an understanding sufficient to trigger Giglio and Brady.
The Fifth Circuit next turned its appellate review to the holdings of Giglio and Napue. A government witness testifying in the Giglio case did not disclose that he had been threatened with prosecution if he did not testify and assured him that if he did testify he would have to rely upon the good judgment and conscience of the government as to whether he would be prosecuted. See: 405 U.S. at 152. In Napue a witness had been “promised” consideration in exchange for his testimony and lied about the promise before the jury. See: 360 U.S. at 265. Napue was significant because the Supreme Court did not focus on whether there had been an actual “promise” but the extent to which the witness’ testimony misled the jury. Id., 360 U.S. at 270.
Under the instruction of these two Supreme Court precedents, the Fifth Circuit concluded:
“Giglio and Napue set a clear precedent, establishing that where a key witness has received consideration or potential favors in exchange for testimony and lies about those favors, the trial is not fair. Although Giglio and Napue use the term ‘promise’ in referring to covered-up deals, they establish that the crux of a Fourteenth Amendment violation is deception. A promise is unnecessary. Where, as here, the witness's credibility ‘was . . . an important issue in the case . . . evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.’ 31 As the Court held in U.S. v. Bagley, [473 U.S. 667, 683 (1985)], a case that informed the district court’s decision,
“’Defense counsel asked the prosecutor to disclose any inducements that had been made to witnesses, and the prosecutor failed to disclose that the possibility of a reward had been held out to [the witnesses] if the information they supplied led to "the accomplishment of the objective sought to be obtained . . . to the satisfaction of [the Government].’ This possibility of a reward gave [the witnesses] a direct, personal stake in respondent's conviction. The fact that the stake was not guaranteed through a promise or binding contract, but was expressly contingent on the Government's satisfaction with the end result, served only to strengthen any incentive to testify falsely in order to secure a conviction.’
”The Supreme Court emphasized in Giglio that ‘this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice’" and that ‘the same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.’ Tassin presented evidence of an ‘understanding or agreement’ between Georgina Tassin and the State, evidence that showed more than a mere ‘hope or expectation’ of a lenient sentence, and that the State failed to correct Georgina's testimony that no agreement existed. The district court pointed to multiple pieces of supporting evidence; we highlight a few.
”Georgina's attorney testified after trial that he believed, prior to trial, that Georgina would get a ten-year sentence if she testified consistently with her prior statements inculpating Robert and he relayed this belief to her, although emphasizing that nothing was guaranteed. Her attorney recalled meetings with the judge where the possibility of a ten-year sentence was discussed. According to the attorney's affidavit, the judge stated that he typically gave defendants in Georgina's position a fifteen- to thirty-year sentence but that he might shorten that sentence to ten years if she testified consistently. Georgina relayed her belief in this deal in her pre-trial letter to her friend Shorty, stating, ‘I am looking at 10 years and the judge said that I would have to do 6 years out of that.’ Yet at trial, Georgina testified that she might receive ninety-nine years in prison and that she didn't know whether her testimony would ‘have any bearing’ on her sentence. Most importantly, the district attorney capitalized on this misrepresentation in his closing argument, stating, ‘She faces up to ninety-nine years in jail for armed robbery. . . . So she has no reason to lie to anybody. . . . You call five to ninety-nine years a deal?’ The State not only allowed deceptive testimony to go uncorrected; it also capitalized on its key witness's testimony to argue that there were no pending agreements affecting her credibility.” Id., at LEXIS 20-23. [Italics original]
The Fifth Circuit said that under the Giglio-Napue-Bagley trilogy of precedents the State had an affirmative duty to disclose the “understanding” it had with Georgina Tassin. The State tried to weasel around this conclusion by saying even if Georgina’s testimony was “misleading,” the failure to disclose any understanding between her and the State was not “material” and, therefore, the Giglio-Napue-Bagley trilogy of precedents did not apply. The Fifth Circuit casually brushed aside this argument by saying there was a “reasonable probability” that had the understanding between Georgina and the State been disclosed to the jury, the result at trial would have been different, even though there had been no “firm promise.” Id., at LEXIS 23.
The appeals court then turned its attention to the Brady issue. Under the Brady rule, the suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution,” and when the “reliability of a given witness may well be determinative of guilt or innocence,” any nondisclosure of evidence relevant to the issue of credibility falls within this rule. See: 373 U.S. at 87. The Fifth Circuit concluded:
“It is true that ‘[w]e do not . . . automatically require a new trial whenever 'a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. . . .' A finding of materiality of the evidence is required under Brady.’ When the question of materiality arises, ‘a new trial is required if 'the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . . .’
”The State argues that Georgina's testimony that the Tassins planned to commit a felony - armed robbery - was not the only testimony supporting Robert Tassin's death penalty conviction: Stagner's and the forensic examiner's testimony support the jury's finding on two other aggravating factors - knowing creation of ‘a risk of death or great bodily harm’ and committing an offense ‘in a heinous, atrocious or cruel manner.’ The fact that other evidence could have supported two aggravating factors underlying Robert's capital conviction fails to address the question of the gravity of the false testimony at issue and how the State's failure to reveal the existence of a sentencing deal underlying that false testimony affected the jury's conclusions. As the Supreme Court held in Kyles v. Whitley [514 U.S. 419, 434-35 (1995)],
“‘A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’
”The State's theory of the case was that when Sheila Mills went into the Tassins' home to ask about drugs while Stagner and Martin waited in the car, Mills and the Tassins planned an armed robbery of Stagner and Martin. The jury found Tassin guilty of first-degree murder ‘committed in the course of an armed robbery’; Georgina's testimony was crucial to this finding. Because Mills did not testify and Robert insisted that he did not plan any robbery, Georgina was the key witness - and the only witness - behind the State's felony murder case. Her credibility was material; if the jury had known of Georgina's sentencing deal, there is a reasonable likelihood that they may have chosen to believe Robert's story over his wife's. There is also a reasonable likelihood that the State's remaining theories of the case, based on the other aggravating factors, would have been too weak to stand independently.
”The State claims that even absent Georgina's testimony, the outcome of the trial would have been the same, since Stagner's and the forensic examiner's testimony showed the heinous nature of the crime and knowing creation of risk, the two other aggravating factors found by the jury. The jury had reason to disbelieve Stagner; he originally told the police that hitchhikers had shot Stagner and Martin. And evidence presented by a non-eyewitness forensic examiner may not, by itself, have convinced the jury of the existence of the aggravating factors. Regardless of the strength of the evidence presented by Stagner and the examiner, the central issue in the Brady analysis is how the evidence of Georgina's favorable sentencing deal would have affected the case as a whole. As the district court found, quoting Napue [360 U.S. at 269],
“’The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.’
”The jury was not informed of a beneficial sentencing agreement that hinged directly on Georgina's testimony, and Georgina was central to the State's case. The State not only failed to correct Georgina's misleading testimony with respect to that deal but capitalized on that testimony, arguing to the jury that Georgina had no reason to lie. This is a Fourteenth Amendment violation under the clear precedent of Giglio, Napue, and Brady, as the district court held.” Id., at LEXIS 25-28.
There is a reasonable probability that within the Harris County District Attorney Office’s paper files, computer files, and email files there exists evidence of non-disclosed deals, understandings, agreements, and inducements, as well as evidence of the knowing use of misleading and perjured testimony, given by State witnesses (particularly in cases involving co-defendant testimony) that would warrant reversal of a significant number of criminal convictions, especially in capital cases. The public record is now saturated with evidence of clear prosecutorial misconduct by the District Attorney’s office. This evidence lends credence to investigations by defense attorneys into new investigations into non-disclosed Brady material, especially in capital cases.
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