Texas Continuous to Grapple with Prosecutorial Misconduct

In 2013, the Texas Legislature enacted the Michael Morton Act. The Act, which became effective January 1, 2014, requires Texas prosecutors to open their files, provide copies of certain information for defense discovery and to keep records of all the information they disclose to the defense. The Act has a twofold purpose: to prevent wrongful convictions and minimize the prosecutorial misconduct often associated with wrongful convictions and other failure-to-disclose cases.

Primary Duty of Prosecutors Too Often Neglected

Texas law has long protected against unethical and unlawful prosecutorial conduct. Article 2.01 of the state’s Code of Criminal Procedure provides: “… It shall be the primary duty of 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.”

While this evidentiary prerequisite was enacted in 1965, it was essentially ignored by Texas prosecutors over next 48 years until the Michael Morton Act was enacted. This was evidenced in 2016 in three cases in which the courts found that prosecutorial misconduct resulted in wrongful convictions.

Kelly Siegler Engaged in Prosecutorial Misconduct

The most prominent of these cases involved the murder conviction of David Temple who was convicted in Harris County for the 1999 execution-style murder of his wife. Temple, a former high school football star in Katy and football coach at Alief Hastings High School in Houston, was prosecuted by former flamboyant and highly controversial Harris County Assistant District Attorney Kelly Siegler who is no stranger to accusations of prosecutorial misconduct.

Represented by prominent Houston defense attorney Stan Schneider, Temple convinced a local criminal district court Judge Larry Gist, after spending nine years in prison, that Siegler had engaged in prosecutorial misconduct to secure his conviction; namely, that the former prosecutor-turned-reality TV star had knowingly suppressed information about alternative suspects in the case. Judge Gist recommended a new trial for Temple. The Texas Court of Criminal Appeals upheld that recommendation last November. Temple was released on bond a month later.

One of the first actions taken by newly-elected Harris County District Attorney Kim Ogg was to announce this past January that she would “personally” review all the evidence and Siegler’s handling of the Temple case. In a statement released to the media, Ogg had this to say: “I will personally review the files. There is no review team, and the decision will be mine. This won’t be the practice in every case. This stands out because there have been so many accusations and such controversy about the trial prosecutor.”

Then there is the November 2015 murder conviction of Courtney Hayden who received a 40-year jury-imposed sentence for the killing of Anthony Macias in Corpus Christi. Three months later state criminal district court Judge Nanette Hasette issued a 7-page order that found: “The court concludes that the intentional suppression of evidence and lack of timely disclosure of exculpatory, mitigating and impeachment evidence described herein constitutes prosecutorial misconduct and undermines the confidence of the public in the judicial system, and the outcome of this trial specifically.”

Nueces County ADA Intentionally Suppressed Exculpatory Evidence

The Hayden case was prosecuted by Nueces County Assistant District Attorney Jenny Dorsey who, with her supervisor Retha Cable, celebrated the victory with the victim’s family in the courtroom. But just two weeks after the jury sentenced Hayden to 40 years in prison in December 2015, Dorsey faxed a letter to Hayden’s defense attorney, John Gilmore, informing him that the medical examiner’s trial testimony concerning the gunshot wound that killed the victim was “different” than his “initial opinion” about the wound.

Nueces County District Attorney Mike Skurka said that while he agreed Hayden deserved a new trial, he was not prepared to accept the Judge Hasette’s finding of prosecutorial misconduct. His office filed an appeal with the Thirteenth District Court of Appeals seeking a review of the judge’s order.

Fort Bend and Harris Counties, More Misconduct

Finally, there is the case Edward George McGregor who was convicted in 2010 of two capital murders in Fort Bend County and Harris County. His prosecution for the Harris County murder was handled by Harris County Assistant District Attorney Elizabeth Shipley Exley while the Fort Bend County murder was handled by Fort Bend County ADA Jeff Strange. In her zeal to convict McGregor for the murders—both of which occurred in the early 1990s—Exley used three jailhouse snitches, each of whom testified they overheard McGregor confess to the murders.

One of the witnesses was Delores Gable was serving a 90-year term for solicitation to commit murder when McGregor stood trial. According to a Houston Press account, Gable testified “on the night of the murder 16 years earlier, she said she overheard McGregor confess about the murder to her husband, Brian Gable, while standing outside the victim’s home, and she added that McGregor’s father was also present.”

The problem with Gable’s testimony is that she was lying. McGregor’s father was in prison on the night of the murder, Gable was never married to Brian Gable, and she never lived at the residence where the confession was supposedly overheard. Worse yet, Gable told the jury that she had not been promised any benefits for testifying; that she was testifying only because she was battling cancer and wanted to clear her conscience.

But even worse, ADA Exley knew McGregor’s father was in prison when the confession was reportedly made; and that she had told Gable she would write a letter on Gable’s behalf to the parole board (something she eventually did). The prosecutor said she did not believe she had to disclose that benefit to the jury because she had not “promised” to write the letter for Gable. She would latter testify at McGregor’s post-conviction habeas corpus hearing that she let Gable’s perjured testimony go uncorrected before the jury because she had “forgot” about parole board letter conversation she had with the snitch.

Exley, without the knowledge of ADA Strange, also made secret deals with the other two jailhouse snitches as well – one had his felony charge reduced to a misdemeanor and the other had an agreed upon plea deal reduced from 40 years to 7 with the help of Exley. As with Gable, Exley allowed the two witnesses to falsely tell the jury that they had not been promised any benefits in exchange for their testimony.

This past November, Fort Bend County Judge James Shoemake recommended to the Court of Criminal Appeals that McGregor’s murder convictions be reversed.

“Win at All Cost” Mentality Still Infects Texas Prosecutors

These three cases reflect that prosecutorial misconduct is alive and kicking in the state of Texas, the Michael Morton Act notwithstanding. Undoubtedly, the Act has had a positive impact on the state’s criminal justice system, but the “win at all costs” mentality still infects some prosecutors in both the smaller and larger counties across the state. The State Bar has stepped up its scrutiny of these cases- and we can only that this will force all prosecutors to adhere to the Art. 2.01 rule. The rule is there to be obeyed, not ignored.