Another Travis County ADA Withheld Evidence…Again

Travis County Assistant District Attorney Stephanie McFarland withheld information showing that a key state witness lied during a 2006 aggravated assault trial. As a result, the conviction that she obtained in the case has been vacated.

This is the second time in 15 months that McFarland has been found to have engaged in this type of prosecutorial misconduct. I’m sure I’m not the only one who will be watching closely to see what District Attorney Rosemary Lemberg does with Ms. McFarland.

Representing the Wretched

I’ve written about representing the guilty. Now, via Defending People and from Preaching to the Choir, I’ve come across a wonderful treatment of representing the wretched:

So I was perusing an internet comment board this afternoon. (I know, I know. Stay away, those internet message boards are filled with crazies. Nothing good comes from reading, etc. I know. Meryl’s staging an intervention, but in the meantime, I learn interesting things about the general populace.)

Anyway, I found this comment on an article about a capital murder case:

The Constitution does a lot to protect fools, the undeserving, and pieces of human trash.

Reading that made me grin. I felt all warm and fuzzy inside. And I said with pride, “Hell, yeah, it does!”

I’m willing to wager that’s not the reaction the writer was expecting. Based on context, I’m fairly confident the writer wrote those words with a rueful shake of the head and a sense of outrage that the Constitution does protect those folks. I suspect the writer would think it not such a bad thing if we added an asterisk to the Bill of Rights indicating these rights do not apply to fools, the undeserving, and pieces of human trash.

But, me, I think it’s awesome. (Yes, I’m a lawyer with an extensive vocabulary and that is the word I choose.) It’s easy to respect the rights of the pretty people, the popular ones, the charming folk, the nice guys. No one’s going to run roughshod over Mr. Rogers’ rights. We probably don’t need a Constitution to protect the Prom Queen. It’s the assholes we need to write the rules for. It’s harder to treat them well, to be fair to them, to refrain from punching them. So 200-some years ago, we wrote a contract with ourselves to make sure we would always respect the rights of the worst among us.

It’s easy to treat the good people well. But the true measure of our character is how we treat the bad ones. We choose to treat them fairly and with respect. And I think it’s awesome.

Here’s that link again from Preaching to the Choir, in case you think this is as “awesome” as I do.

Representing the Guilty

While catching up on my blog reading recently, I came across a recurring topic in my field that I’ve yet to address here.


In this instance, Keyana, a self-described aspiring criminal defense attorney, explores her apparent belief that there is something inherently wrong with representing people who are “guilty as charged.” The solution, she exposits, is to cast one’s role in terms of seeking justice. Then one is free to fulfill the role of criminal defense attorney “in good conscience.”


Her essay ran afoul of Scott Greenfield, a New York criminal defense attorney whose sharp wit is generally on-target but who pulls no punches when it comes to his subjects’ feelings. Unlike Greenfield, who lambasted the baby lawyer for her ignorance, I’m not particularly offended by Keyana’s essay. She’s merely expanding on a viewpoint that I’ve encountered  over cocktails for more than a decade. But I agree that she’s dead wrong. She’s also missing the big picture.


In the first place, the criminal defense attorney’s role is NOT to seek justice—that’s the prosecutor’s job. The criminal defense attorney must be a zealous advocate for her client’s interests within the bounds of the law and the rules of professional responsibility. PERIOD. Trying to spin that into a mandate to seek justice runs the serious risk of undermining your client’s interests when they run counter to the common good. That could actually get you disbarred, and rightly so.


Having worked both sides of the docket, I can comfortably say that prosecuting is easier. One reason is that a prosecutor rarely has to see the big picture in order to understand why what she’s doing is good and important—that’s obvious.  But for criminal defense, one may have to grasp the bigger picture to see the nobility of the profession. That can be difficult for newbies, particularly in those cases where they represent the “wretched refuse of [our] teeming shore.”


The bigger picture is that, in doing our jobs to the best of our abilities, criminal defense attorneys protect the innocent by policing the police. Believe it or not (and this can be a very hard truth for newbies), some cops lie, cheat, and, yes, even arrest and hurt innocent people. Some prosecutors and judges let them get away with it and some even participate.  More often, they simply don’t know about it and have neither the time nor the inclination to investigate the complaints of the accused.


But the point is that, if defense attorneys aren’t doing their jobs and getting cases thrown out when they suck or the cops break the law, then nothing will keep bad cops in line, which is a very scary prospect. Bad cops are worse than ordinary criminals because they have the full force of the government behind them to oppress the people (yes, even innocent people) who can bring their criminal activities and other misconduct to light.


A final point that bears mentioning…There is a huge range of punishment for most offenses. Sometimes a person is guilty of a criminal offense but nonetheless undeserving of the relatively harsh punishment the prosecutor seeks. The prosecutor may be unaware of the mitigating circumstances, disinclined to believe the defendant, or biased against someone accused of this type of offense, regardless of the circumstances. Such a dendant is “guilty as charged” but nonetheless entitled to a fair punishment, i.e., a punishment that accounts for the mitigating circumstances. That’s unlikely to happen without the assistance of a criminal defense attorney.

Travis County Finding of Prosecutorial Misconduct Upheld by CCA

Last week, the Court of Criminal Appeals refused to reverse a lower court ruling that threw out the sentence in the Laura Hall case due to prosecutorial conduct by a Travis County ADA.  Hall was convicted of tampering with evidence and sentenced to five years in prison as a result of her role in the mutilation of the body of a 21-year-old former University of Texas student.  More…

Coverage of lower court rulings: (1) Original trial court ruling. (2) 3rd Court of Appeals decision.

Case of Note: Pottawattamie County, IA v. McGhee (SCOTUS)

On November 4, 2009, the U.S. Supreme Court will hear oral arguments in Pottawattamie County, IA v. McGhee, which addresses the extent to which prosecutors are immune from civil liability for egregious misconduct such as coercing false testimony from witnesses. Both the trial and appellate courts disagreed with prosecutors’ argument that the doctrine of absolute immunity should protect prosecutors from liability for such conduct.

11/4/09 Update. One of the prosecutors’ arguments in the Pottawattamie County case is that there is “no freestanding constitutional right not to be framed. ” Well, there ought to be.

11/11/09 Update. Here’s a link for the transcript of oral arguments (PDF). (Also added “case summaries” and added to the “additional coverage” list below.)

Case Summaries: (1) SCOTUSwiki, (2) LII / Legal Information Institute.

Additional Coverage (alphabetically by publication)

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”

Foxes Shouldn’t Guard the Chicken Coop

Following is an excerpt from an NPR article that’s worth preserving for posterity. It relates to the recent dismissal of the conviction against Alaska Senator Ted Stevens.  Judge Emmett Sullivan was apparently flabbergasted by rampant prosecutorial misconduct:



Again and again, [the judge] said, the government was caught making false representations and failing to meet what it knew was its obligation to turn over information that was potentially favorable to the defense. The fair administration of justice, he said, should not depend on the luck of the draw — it should not depend on who represents a defendant or whether an FBI agent blows the whistle or whether there is a new administration or a new attorney general or a new trial team.


“Whether you are a public official or a private citizen or a Guantanamo detainee,” he said, “the government has an obligation to produce exculpatory evidence so that justice can be done.


“The events of this case are too numerous and serious to leave to an internal inquiry by the Justice Department,” Sullivan said.


Judge Sullivan not only dismissed the conviction but went a step further by appointing a special prosecutor to investigate the malfeasants.

Definitely the right decision, in my opinion. Self-policing is to abuse of power what accelerant is to flame, or, as Mark Bennet recently commented, Impunity + Badges = Abuse. Yes, prosecutors get badges, too.

Prosecuting a “Bullshit Case”

Upon commencement of his employment, every prosecutor in Texas takes an oath to uphold his “primary duty…not to convict, but to see that justice is done.” Lest there be any doubt that this duty encompasses justice for the accused, the law goes on to explain that prosecutors “shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (see Texas CCP 2.01.)

The way I read it, the duty necessarily means that a prosecutor should also refrain from prosecuting cases that lack merit. I took that duty very seriously during the short time that I was a prosecutor. But not everybody sees it that way, as I was reminded last week.

The incident involved a felony case in which my client, “John,” who’s in his 40s and has no prior criminal history, claims that he was framed.  He was arrested along with another man, “Roger,” who was a stranger to John until the night in question. According to John, Roger approached him at a convenience store, offered him $20 for a ride, then talked his way behind the wheel. After driving to the area where he supposedly needed a ride, Roger suddenly started driving like a bat out of hell until he attracted the attention of law enforcement and was stopped for a traffic violation. As Roger pulled the car over, he threw a bag of weed at John, saying “I have a felony warrant–I can’t have this on me!”

During the stop, Roger was arrested on the warrant and John’s car was searched. In addition to the bag of weed, the cops found drugs in Roger’s backback, which he had stashed in the trunk before the two men left the convenience store. The backpack contained a small amount of crack cocaine and no ID. Roger claimed to know nothing of the backpack or the drugs. John was arrested for possession of a controlled substance and possession of marijuana.

After listening to my client’s tale and noting his lack of criminal history (unusual for a crack user at his age), I decided to get an investigator involved. His investigation revealed that Roger may actually be a confidential informant. CI involvement in a drug case is a red flag to a criminal defense attorney because it means a key part of the state’s “investigation” team may have had motive to frame or entrap people to earn some kind of reward (some notorious Texas cases in which this issue came up were Hearne, Palestine, and the Dallas fake drug case; for more depth on the topic, see this Grits for Breakfast article and this academic paper). Such information is also clearly exculpatory, aka “Brady” material, which means that the state is required to turn it over…in a perfect world.

In the real world, however, you’re lucky if a prosecutor agrees that material he doesn’t want to disclose is exculpatory (by definition, it tends to hurt his case) and he’s unlikely to suffer any real consequence for failing to turn it over. Even so, the Travis County D.A.’s office is (hopefully) still smarting from a recent scandal involving a prosecutor who failed to disclose Brady material (see the Statesman coverage for additional detail), so I was thinking that its prosecutors may be a little more sensitive to the issue for a short time at least.

So before I spent a bunch of time trying to get discovery through formal procedures, I decided to see if the felony prosecutor, “Ted,” would cooperate with me. I broached the issue at our scheduled pretrial conference last week and asked him to make inquiries. He initially resisted, so I pointed out that a CI arrangement would be exculpatory and must be disclosed. Rather than respond to my request at this point, however, Ted offered to reduce the charge to a misdemeanor with a sentence of however much jail time my client already had credit for (not much because John had no trouble qualifying for personal bond). Ted stated that if John didn’t accept the new offer, Ted would “have to think about” my request.

Most felony defendants, innocent or guilty, would be tempted by that offer because they could walk away with no jail or probation time while taking a mere misdemeanor conviction, versus a felony conviction and possible prison time if they’re convicted at trial. I’d certainly be tempted if it were me, which is why I was glad the decision wasn’t mine to make. No matter how innocent you are, trial is risky, particularly if someone has done a decent job of framing you. I had explained that to John before and I repeated the warning when I communicated the new offer but he still refused to plead guilty.

When I notified the prosecutor that his offer had been rejected, I expected him to ask for a reset so that he could think about my original request. Instead, he suddenly announced that he was dismissing the case. When I expressed my surprise at the turnabout, he stated that it’s a “bullshit case.”  I probably should have just accepted my client’s good fortune and moved on–I did do the necessary paperwork, use it to persuade the misdemeanor prosecutor to dismiss as well, and send my client happily on his way–but to tell you the truth, the whole thing made me kind of angry.

Don’t get me wrong–dismissal was the right result for my client and I’m glad this ordeal is over for him–but why is a prosecutor trying to get someone to plead guilty to anything when he knows it’s a “bullshit case?” How does he reconcile that with his primary duty “not to convict, but to see that justice is done?” All I can figure is that he’s rationalized away his duty when it comes to defendants.

Whatever his rationale, the real injustice in this situation lies not with my client but with unknown individuals who have already fallen prey to this scam or who will do so in the future. It was too smooth to be the first time and it’s unlikely to be the last.