Fault Lines
29 June 2017

Prosecutorial Misconduct & Brady: Is it Just a Texas Thing?

November 3, 2016 (Fault Lines) — Surely it’s not just a Texas problem. Yet, Texas has, for years, struggled with the concept that prosecutors are to seek justice, not just convictions. Further, they are to disclose favorable evidence, mitigating evidence, and even impeachment evidence. You know, the Brady stuff! Well Texas wins loses again and requires the Court of Criminal Appeals to affirm that prosecutors must disclose plea deals with witnesses.

At issue was the conviction of Kenneth Headley: Headley was convicted of murder based on the testimony of one eyewitness, Rebecca Broussard. Unknown to trial counsel, Broussard had been given quite the deal in exchange for her testimony. She would receive misdemeanor time-served on her two new felony charges in exchange for her testimony at the grand jury and again at trial.

Despite the prosecutor’s testimony that this was not a deal that had to be disclosed, evidence of “the deal” was nonetheless presented and the prosecutor was impeached. After what has been described as a contentious habeas hearing, where apparently the State could not bring itself to concede the deal or its failure to disclose, the trial court made its findings of fact and conclusion of law. Finding the State failed to disclose favorable impeachment evidence and Headley was denied his Sixth Amendment right to confrontation, the trial court recommended relief: the judgment is set aside and Headley is remanded to the trial court.

Originally indicted in late 2001, Headley was to stand trial in April 2002. However, Broussard failed to appear to testify. Missing the only witness who would identify Headley, the State was forced to dismiss the prosecution. As luck would have it, Broussard was subsequently arrested on two felony charges: possession of a controlled substance and forgery. With the witness now available, the prosecutor re-filed the murder charge and again prepared to try Headley.

To be sure the witness would remain available, the prosecutor requested Broussard be held at no bond on her new pending charge of possession. Never mind that Texas does not permit the finding of “no bond” for a prosecutorial witness. Yes, Harris County in particular likes to jail its victims and witnesses, but that’s not exactly how it works and I digress. Broussard was held at no bond. The trial prosecutor, Rob Freyer, even notified the prosecutor handling Broussard’s cases and specified:

[T}he State was not to allow her to plea until she testified at [Headley’s] murder trial and until Assistant District Attorney Rob Freyer gave permission.

Broussard was then taken before the grand jury in relation to Headley’s re-filed case. She testified to the grand jury that she and Rob Freyer had spoken face to face several times. She also admitted she did not show up for the first trial and the case had to be dismissed. She further testified that Freyer had come to see her in the county jail after she was arrested for forgery and possession. But most interestingly:

At the conclusion of Rebecca Broussard’s testimony before the Grand Jury, Assistant District Attorney Rob Freyer stated that “we all know…that you will be given a sentence under 12.44A for two crimes that you have and…you’ll get credit for all the time that you get in.” In response to this, Rebecca Broussard replied that this was indeed her understanding.

Not only was the prosecutor holding Broussard hostage by not permitting a plea in her cases until she testified and he approved, but also he had promised her a rather sweet deal. In Texas, 12.44A is a section that permits misdemeanor punishment for a felony conviction. The felony would normally carry a punishment range of at least 180 days to a maximum of two years in a state jail facility (prison); however, where the State moves to sentence under 12.44A, the defendant can receive up to 1 year in the county jail.

Now comes the fun part. In an interesting twist, a personal relationship was discovered between Freyer and the lead detective in Headley’s case. Based on that relationship, Freyer was removed from the case and another prosecutor was assigned to handle the trial. As the trial went forward, nothing about Broussard’s deal was provided to Headley’s lawyer. The new prosecutor contended she had no knowledge of the deal. And, Freyer testified he would have “brought this out” during the direct examination of Broussard had he tried the case himself.

So believing he would have himself made the jury aware of “the deal,” he apparently believed he was under no obligation to provide this notice to the defense. They certainly didn’t need to know ahead of time to investigate it further. They certainly didn’t need to prepare a rigorous cross. Better to just surprise them and the jury during trial. Well, since he didn’t end up trying the case, his best laid plan went awry: no one told the jury about the sweet deal given to this one and only eyewitness.

After her testimony, the State made good on Broussard’s deal. She was allowed to enter a plea of guilty in exchange for a sentence under 12.44A with credit for the time she had already served: 131 days.

One would think nothing in the law could be more clear: deals cut with witnesses must be disclosed. The plea deal was favorable to Broussard and ripe for cross-examination. Yet, the defense had no opportunity to rigorously cross-examine Broussard regarding the deal she struck in exchange for her testimony and her ability to get out of jail with time served. Though it seems so clear-cut, many prosecutors fail to get it. Or, perhaps they do and choose otherwise. It’s hard to tell. So here we are with yet another case where the trial court and Court of Criminal Appeals had to point it out.

The trial court conducted a live habeas hearing at which the court heard testimony and arguments. The trial court has determined that the original trial prosecutor had an agreement with the witness that she would be given time served on her pending cases in exchange for her testimony at [Headley’s] trial.

The trial court finds that the witness’s agreement with the original prosecutor would likely have had an effect on the jury’s opinion of her truthfulness. The trial court concludes that because the defense was not given an opportunity to cross-examine the witness rigorously on the plea agreement that she made with the State beforehand, Applicant was denied due process and the right to confront adverse witnesses.

Relief is granted.

It’s time prosecutors rethink their obligation to provide impeachment evidence and plea-deals. And there it is: Relief is granted – some 14 years and hundreds of thousands of dollars later. Eventually tax payers will start to care about the expense to try these cases again, but the prosecutor didn’t do his job and then went on to defend his actions, even when confronted with the very deal he cut claiming he didn’t need to disclose it.

2 Comments on this post.

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  • traderprofit
    4 November 2016 at 12:56 am - Reply

    What’s shocking is the Texas CCA got this right considering they have trouble counting seven days in a death penalty case.
    But I digress from a response to the title: No,it isn’t just Texas. Nevada loves ignoring Brady . And judicial misconduct. It’s just a smaller state with better stories to print….oh, check that now that Sheldon Adelson secretly bought the largest paper. I guess I’m stuck with, “it’s a smaller state”

    Honestly, I respect the profession you practice more than any other. The constant beat-downs and the inanity of the sentences could only be worse if you were the one being sentenced.

  • bacchys
    4 November 2016 at 1:17 am - Reply

    Why would prosecutors “get it” when it’s all reward and no risk (for them) to cheat?