Mimesis Law
23 April 2019

Prosecutorial Misconduct in Dallas Ultimately Ended with Justice

May 9, 2016 (Mimesis Law) — With power and immunity comes responsibility, which is why we harp so much on the screwups in the system. We write about judges allowing misconduct in the courtroom, and judges who hold prosecutorial feet to the fire. We blame prosecutors. Even defense attorneys. And even the occasional cop.

Much as it’s important to lay blame when due, it’s also important to acknowledge the rare success arising out of misconduct. The Dallas County District Attorney’s Office ultimately worked to right the wrongs by dismissing charges and agreeing to recommend expunction for an 18-year-old young man who has spent the last two years in jail, battling prosecutorial misconduct and seeking withheld evidence.

In the throws of a custody battle, a mother claimed her two young children were sexually assaulted by their older stepbrother while the children lived with their father. The mother wanted custody of her children. The children both made claims of rape.

The boy told authorities that his older brother repeatedly raped him since he was six, and as recently as two days before he told his mother. He said he didn’t tell his dad the following morning because he forgot “everything that happened.”

The girl told interviewers that all three of them were sleeping in the same bed, with their stepbrother in the middle, when he pulled her pants down and raped her. She told the interviewer that he did it “over and over again.” She also told the interviewer that he had first abused her when she was six or seven years old.

Despite their claims, medical evidence was lacking. But that’s not necessarily uncommon in child abuse cases. Prosecutors often forge ahead on the word of the child. But therein lies the problem in this case: the word of the child.

A Grand Prairie police detective told the defendant’s father that the case involving the girl was “shaky” in her interview and that he probably would file charges in that case. The detective ultimately filed a charge alleging that he raped his brother, but not the girl.

Sounds like the officer got it right. With the girl’s shaky statement, only one charge was filed. However, enter prosecutorial discretion misconduct and plea bargaining. When the 18-year-old refused a plea offer for 15 years in prison and sought a bond reduction, the prosecutor, Sneha Patel threatened stated her intention to file the additional charge.

The threat of a second indictment soon became reality, even though prosecutors had video recordings of the detective saying the allegations made by the girl were “shaky.” Prosecutors also had a recordings [sic] of the forensic interviewer saying she was confused by what the girl said had happened.

Thus, the beginning of prosecutorial misconduct in this case. Under the Texas Disciplinary Rules of Professional Conduct, a prosecutor is governed by special responsibilities, which include refraining from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause.

While a prosecutor can use additional charges as leverage for plea bargain purposes, the prosecutor runs afoul of the rule where the additional charge is not supported by probable cause. Even the police officer didn’t believe there was enough evidence to file charges relating to the young girl’s claims. Yet, the prosecutor needed the threat of additional charges to perhaps persuade the 18-year old to plea and avoid a trial. In many cases, combining weak cases will provide sufficient pressure and risk to cause even the innocent to cave.

With the fortitude to remain steadfast, the 18-year-old trusted his lawyers to get to the bottom of these cases – a feat many could not maintain. His lawyers filed motion after motion to discover evidence in the case:

In November, just a few weeks before a scheduled trial date, the defense attorneys filed a third motion and obtained a court order demanding that prosecutors turn over anything. Five days before the trial, when prosecutors hadn’t complied, [the attorney] sent an email demanding that they turn over any evidence related to inconsistencies in the statements of the children, their mother, and her husband.

Plea offers continued to come forward, ranging from 40 years in prison to probation. Each was rejected in turn as lawyers continued to push for evidence of inconsistent statements. Despite Brady and Texas’ codified discovery rules, prosecutors continued to withhold exculpatory and inconsistent statements undermining the state’s cases.

By the morning of trial, the prosecutor then assigned to the case, Joe Flores, told them he would get the information to them later. He also said that all of the information had been turned over. Yet, two hours after the trial was scheduled to start, Flores filed the state’s response to the request for inconsistent statements. Flores had been aware of these inconsistencies for at least 11 days:

Those statements included the girl had told DA investigator that she did not remember the rape. The mother of the children also was now saying she was alone with no other adults present and not in a vehicle when the children told her about the abuse. The previous story had been that her fiancé had been in the car with her.

Her fiancé had also previously given sworn testimony that he was in the car when the children first made their outcry.

Another violation of the rules. Those special responsibilities of prosecutors also require prosecutors to 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, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Recently, in a case of first impression, the Texas Board of Disciplinary Appeals sanctioned a prosecutor for withholding evidence and noted that prosecutors owe a heightened duty to make timely disclosure to the defense of all evidence or information that tends to negate guilt or mitigate punishment.

In this case, defense lawyers Ashkan Mehryari and former State District Judge John Creuzot went above and beyond and continued to persist, filing at least three motions to discover exculpatory evidence the prosecutor was holding. They, like their client, had the fortitude to remain steadfast in their defense. They knew the stories didn’t add up. They just didn’t have all the pieces – as the prosecutor held some back.

How does this happen in a vacuum? Surely, supervisors and other prosecutors knew Flores was withholding information, right? Well, not necessarily. It’s not uncommon for prosecutors handling a case to work in somewhat of a vacuum. Unless the prosecutor sought out assistance from colleagues, there would be no reason for a supervisor to get involved or review the evidence.

Luckily, these lawyers pushed for supervisory review and met with Dallas County Assistant District Attorney and Felony Trial Bureau Chief Kevin Brooks to review the case and the misconduct. The lawyers also filed a 52-page motion detailing allegations of prosecutorial misconduct and vindictive prosecution. On the day the hearing was to be held, Brooks dismissed the cases and filed a notice recommending the records of these cases be expunged.

Expunction is great, but does it truly solve the problem? Does the 18-year-old get back those two years spent in jail waiting? Do Flores and Patel face any discipline? Do other prosecutors learn from this example? Well, the 18-year-old will never get those two years back. As for the prosecutors, perhaps they will receive an appropriate reprimand so that others will learn from their mistakes.

But even if imperfect, score one for Brooks and justice. Flores resigned from the District Attorney’s Office, and the office ultimately made right on his and Patel’s wrongs. And, since we’re always happy to bring misconduct to light, we should be similarly happy to applaud misconduct corrected.

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