Texas Trifecta And Prosecutors’ “Win At All Costs” Tactics
November 10, 2016 (Fault Lines) — Good things come in threes. Wait; maybe it’s bad things come in threes? No matter, it’s all perspective. Rounding out a trifecta of habeas attacks, another Harris County prosecutor comes under fire for concealing evidence of benefits given to not just one but three state witnesses by eliciting and failing to correct their false testimony about receiving benefits. This week Judge James Shoemake of the 434th District Court in Fort Bend County, Texas recommended habeas relief for Edward McGregor.
[McGregor] … is entitled to habeas corpus relief on his claim that the State suppressed evidence that witnesses received a benefit for their testimony.
[McGregor] is entitled to habeas corpus relief on his claim that the State used false testimony to obtain a conviction in this case. [citations omitted].
In 2010, McGregor was tried and convicted of capital murder and sentenced to life in prison. McGregor was tried in Fort Bend County, just southwest of Houston and Harris County. Harris County prosecutor Elizabeth Shipley Exley served as co-counsel for the State in this Fort Bend prosecution as she was simultaneously prosecuting a separate murder case involving McGregor, but in Harris County. The Fort Bend case was considered the “stronger” case and preceded to trial first. After McGregor received an automatic life sentence in Fort Bend County, Shipley dismissed McGregor’s Harris County case.
Prosecutors conceded each of the cases against McGregor was largely circumstantial and that three witnesses were critical to their case and the conviction. At trial, Delores Gable, Marvin Paxton, and Adam Osani all testified for the State. Each was incarcerated. Gable was serving a sentence for which she hoped to gain parole. Paxton and Osani both had pending cases in Harris County and hoped for lesser sentences in exchange for their testimony against McGregor. Paxton and Osani were both jailhouse snitches, claiming they heard McGregor confess to killing two “bitches,” while Gable claimed she was present when McGregor confessed to Gable’s husband years earlier while they were all together in the neighborhood.
Ultimately all three testified under the direct examination of Shipley. Each was cross-examined and each denied receiving any benefit for their testimony. However, at the habeas hearing, evidence showed that each received a benefit and each had testified falsely about such benefit.
Gable requested assistance in making parole. When Shipley met with Gable in prison, Shipley told Gable she could not guarantee parole but that the best she could do would be to write a letter on her behalf to the parole board so they would know she had assisted in the murder prosecution. Shortly after her testimony, Shipley made good on her statement and wrote the letter.
Paxton was charged with five aggravated robberies. After he testified at grand jury, Paxton pled guilty to two aggravated robberies and had three dismissed. His original plea agreement was to plead guilty in an open plea to the court which would be capped by agreement at forty-five years in prison; he had faced up to life in prison. Shipley told Paxton the best she could do was to alert the judge and trial prosecutor that he had assisted. His sentencing was delayed more than a year and until after the Fort Bend trial. However, when he returned for sentencing, his plea agreement had been changed. The original agreement (up to 45 years) was crossed out and “seven years” was handwritten on the document. Additionally, the charges were reduced from aggravated robbery to robbery, a substantial change in Texas that allows for much faster parole.
Osani was charged with a felony family violence offense. He was originally offered a plea agreement for deferred adjudication probation; however, his trial judge rejected that plea agreement and his case was set for trial. About a week prior to trial, Osani came forward with his claim of hearing McGregor confess in the jail and asked his attorney to arrange a plea deal in exchange for his assistance. A plea deal came from Shipley in so much as Shipley advised Osani’s prosecutor that he had provided critical testimony in a capital case and that should be taken into consideration in a plea deal. After Osani testified at the grand jury, he was offered a misdemeanor plea deal for time served and released from jail just days after testifying.
Pretty slick. No specific promise for parole; only a letter saying she had helped. No specific deal cut for Paxton; only an agreement to let the court know he had cooperated. No specific agreement for Osani; only a suggestion to his trial prosecutor that he provided critical help and that should be considered in his plea bargain. So long as there was no specific deal, there was no obligation to disclose it. In fact, the State argued that it need not disclose rewards, agreements, or understandings for consideration unless there has been a “firm promise” – a quid pro quo – made before the witness testified. In other words, so long as there is no “binding contract,” Brady obligations are not triggered.
Yes, that’s really what she believed! Local attorneys have known this is the practice for years:
Gaiser [Osani’s lawyer] testified that it was his experience that prosecutors in Harris County do not disclose “deals” with witnesses so the deal will not be revealed to a jury.
Vernier [a former Harris County District Attorney investigator] testified that it was the common practice of prosecutors at the Harris County District Attorney’s Office to state to a witness that they could not promise anything in return for their testimony, but could write a letter [to the parole board] on the witness’s behalf if the prosecutor chose to do so.
In her defense, Shipley offered up what can only be described as the common practice:
When asked if she would disclose the fact that a witness, who had pending charges, was to receive some assistance in his case, although that assistance had not yet been determined at the time of trial, Shipley answered, “Probably.”
Shipley clarified that if the jury was told the witness had pending cases, she did not have to disclose to the defense that she planned to tell a Judge or prosecutor that the witness cooperated, even if she expected that fact could be considered in regards to a lighter sentence for the witness.
Shipley testified that if it was her intent to reduce a witness’s sentence from thirty years to seven years, after they testified for the State, she was not required to disclose that fact.
Shipley testified that she had not agreed to write a letter to the parole board for Gable before she testified, but then stated, “I told her the most that I could possibly do is write a letter to the parole board explaining to them that she had cooperated. I didn’t say specifically that I would do it, it wasn’t a promise.”
So don’t make a specific promise. Don’t carry it out before the testimony. And, don’t disclose it. Yeah, that sounds about right. Never mind that it does not comport with the law. Yet, Shipley knows the law has been recently reiterated after much abuse:
Shipley stated that if the case were tried today, she would “probably” disclose her agreement with Gable because of the Michael Morton Act.*
All in all, the Court found all three witnesses received a benefit. Shipley was aware of the benefit and actively participated in conveying the benefits. Yet, she saw no reason to disclose this to the court, the jury, her co-counsel, or the defense because nothing was firm at that point. The Court didn’t buy it.
The record reflects, and this Court concludes that the State had, at the very least, understandings with Gable, Paxton, and Osani, that they would benefit from their cooperation in testifying in the instant case; and that those understandings were not disclosed to defense counsel or the jury.
Gable, Paxton, and Osani all testified falsely that they did not have an understanding with the State that they would receive a benefit for their testimony and by the State’s own admission, all three witnesses were “critical” to the State’s case.
Oh yeah, the trifecta. Shipley rounds out the trio with her undisclosed benefits and false testimony spanning from Harris County to Fort Bend County. Rob Freyer, a former Harris County prosecutor and now a Montgomery County prosecutor, with his undisclosed, yet very specific, deal with the only eyewitness in the Headley case. And let’s not forget the 36 instances of prosecutorial misconduct and Brady violations of Kelly Siegler, another former Harris County prosecutor, in the David Temple case.
Three witnesses: all receiving a benefit. Three prosecutors: all from Harris County. Three judges: all recommending relief. Yes, good things come in threes. Or wait, is that three bad things? We’ll chalk that up to perspective. Three wins for due process and fairness. Three losses for seeking justice rather than convictions. Probably not necessarily the trifecta we were hoping for, but a trifecta nonetheless.
*Among other discovery mandates, the Michael Morton Act codified Brady, though it failed to provide a remedy for violations.