Monday, April 9, 2012

Prosecutors Withheld Key Evidence: The Field Isn't Level

The full story, as published in the Denton Record Chronicle, is below:

Prosecutors accused of withholding key evidence in assault trial

A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don’t have “the innate intellect of a fifth-grader.”

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess’ March 2 ruling that they willfully withheld exculpatory evidence from the defense — evidence that would have helped in his defense — Schultz was moved to the district attorney’s civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.

Beck replied in answer to written questions for this story that she did not believe the two were guilty of prosecutorial misconduct.

“I think the case was dismissed by the judge based on the judge’s findings that evidence favorable to the accused was not turned over to the defense and the judge found that action was willful,” Beck wrote. “We do not agree with that finding, but still will not seek an appeal that the judge abused his discretion, which is the standard on appeal.”

Defense lawyer Victor Amador represented Uriostegui at trial. He protested that he had not been given evidence vital to his client’s defense prior to the trial when the victim of the assault testified that she never saw her attacker’s face and referred to the person as “he or she.” She testified that she only told police at the time that she believed it was her husband because of his smell and because the sole of one boot looked familiar, according to court records.

Amador told the judge he advised his client to plead guilty based on a positive identification and that the prosecutors had known for a month what the victim planned to say on the witness stand but never told him that. Prosecutor Bill Schultz acknowledged on the witness stand that he knew but said he believed her description was a positive identification.

Amador asked the judge to grant a mistrial “with jeopardy attached,” which means that Uriostegui cannot be tried again on the charge. Burgess granted that request.

“This situation is unfortunate for everyone involved,” Amador said in answer to a request for comment, and he declined further statements.

The issues stem from a 1963 U.S. Supreme Court ruling in Brady vs. Maryland that addresses a defendant’s 14th Amendment rights to due process under the law. The court ruled that exculpatory evidence is material if the outcome of the trial would have been influenced had the evidence been disclosed to the defense. That case has become a benchmark for exculpatory evidence and lawyers commonly refer to these issues as “Brady issues.”

The Denton case began May 7, 2009, at an apartment complex in the 400 block of North Loop 288. A Denton detective wrote in an affidavit for Uriostegui’s arrest that officers found a broken window in a second-floor apartment and a badly injured woman on the ground. It was later determined that she had nine knife wounds, including two that burst her breast implants, and a broken back.

The victim was Maria Uriostegui. According to the police report, she told officers that she had separated from her husband and lived in the apartment with her two younger children. About a week earlier she had met a man on a Spanish-speaking chat line, and on that night she invited him to the apartment.

She told police that she was in her bedroom plugging a cellphone into a charger and the visitor followed her into the room. There was no light save for a television set. About that time someone started hitting her, she said, and she felt like she couldn’t breathe and had no strength. She told the officers that her attacker was her estranged husband.

The visitor, Pedro Jose Melgar, left before police arrived. They reported finding him at his apartment with knife wounds. He told them he did not know the man who cut him but that he had jumped through the window to escape.

Silvano Uriostegui was arrested on two charges of aggravated assault with a deadly weapon. The judge appointed two other lawyers to defend him before Amador took the case. Both the other lawyers asked to be released from the defense.

Amador was appointed in March 2011. He filed motions for discovery of evidence in the case, including a motion for production of evidence favorable to the accused. He received copies of various documents including the Denton detective’s affidavit naming Silvano Uriostegui as the person who stabbed Maria Uriostegui.

He never received any information that she was basing that ID on his smell and the sole of his boot, not on his appearance.

On Feb. 13, 2012, on the advice of his attorney, Uriostegui agreed to plead guilty and seek a jury’s assessment of punishment on the charge that he assaulted his wife. In return for the guilty plea, prosecutors agreed to drop the charges that he also assaulted Melgar, who disappeared after the assault and has not been found to testify against Uriostegui.

On Feb. 14, the prosecutors began their case before a jury. Court records show Maria Uriostegui testified that she had been married to the defendant for about 21 years and they have four children. She testified that after her husband’s business failure, he became moody and depressed and often didn’t go to work. She worked two cleaning jobs that put her out of the house from about 4 a.m. to 1 p.m. and then from 6 to 11 p.m. He was jealous and accused her of cheating. She moved out and filed for divorce.  She told Denton police she was afraid of him and obtained a protective order.

After a break in the proceedings during the jury trial, Amador asked the judge for a mistrial, based on the fact that the witness said she could not identify her attacker except by smell and the sole of his boot. This was different from her testimony in the hearing for a protective order, when she testified that it was her husband who attacked her, he argued.

Schultz argued that witnesses in family violence cases often change their testimony because of pressure from family, and that this was a prior inconsistent statement, not perjury. Schultz said that he worried at one point because another man had once assaulted the victim and after he learned that she claimed not to have seen her attacker’s face, he checked on that man and learned he was in prison and could not have been the person who stabbed her.

At that point Burgess questioned Maria Uriostegui himself. She told him that she “supposed” it was her husband because he had threatened her and because the man smelled like her husband. She said that she told the prosecutors this earlier. Burgess at first denied the mistrial but under further discussion, he granted it.

The defendant had been free on $100,000 bail, and Burgess revoked bail pending a retrial.

Three days later Amador filed a writ of habeas corpus, asking the judge to reinstate bail. He also asked Burgess to rule that his client could not be retried on the case because the prosecutors intentionally misled him about the key element of the case, the identification by the witness that it was her husband who stabbed her.

Amador told the judge that the prosecutors had forced him to ask for the mistrial based on leading him to believe the victim had positively identified his client when she had not. Burgess ruled March 2 the defendant could not be tried again for the aggravated assault against his wife.

But that still left the case against him in the stabbing of her visitor that night. It was supposed to be dropped in the plea bargain, but the plea bargain was not fulfilled. Since Maria Uriostegui has testified that she cannot identify the man who came into her apartment that night and since the other man has disappeared, it is unlikely that trial will ever take place. Beck, the assistant district attorney, acknowledged in a written reply that Melgar has not been found and it was unlikely her office would proceed on the case.

Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against Schultz and Beadle. He defended their actions, stating that they did not intentionally withhold evidence.

In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

“My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did,” Burgess said in his ruling. “I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don’t particularly like his answers, but he at least was honest.”

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another “[expletive] Brady motion.”

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

“And how disingenuous it is to get up here and testify that you don’t think that it’s Brady that the victim can’t identify by face or by anything other than smell and a boot who the attacker is ... ,” he said. “I’m going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They’re not allowed to appear in this courtroom until I rule otherwise.”

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

“A woman that was knifed nine times in the gut and elsewhere doesn’t get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader,” the judge said.

Monday, April 2, 2012

Out of Sight, Out of Mind

I believe that prosecutors should not be allowed to offer jail time or prison time without first having visited a jail and/or prison.  Without that experience, a prosecutor simply can't appreciate the gravity of their extended offer.  Unfortunately, the sad truth is that many prosecutors have not ever visited a prison and/or jail.  And the sad truth is that most jurors haven't had that experience either.  It's plea a case or give a sentence and then out of sight and out of mind.

For those of you who haven't, it is quite an experience.  First of all, even lawyers have to call ahead - not just an hour ahead but usually at least a day ahead.  Then you have to fax a copy of your bar card and driver's license for the certain background check that occurs prior to your entry in the vicinity.  Then, you have to call the prison the day before to confirm your visit.  Once you arrive, be prepared to be searched...everywhere...your car, your body, your bags.  Be prepared to sign in and show your ID multiple times.  It's more extensive and intrusive than an airport search.  It's one thing to see it on television and the movies yet quite another thing to experience the long walk between guard towers occupied by armed guards watching your every move firsthand.  There is nothing pretty or happy about it despite the immaculate landscaping.  

And that's not even an account from a prisoner's perspective.  Just imagine what it would be like to be a prisoner in that environment - behind society's closed doors.  How must they be treated, talked to? Out of sight, out of mind.  Now imagine spending years, day in and day out, in an environment like that.  I imagine if people really gave that thought then pleas offers and prison sentences would be shorter - more appropriate in most cases.  After all, we're dealing with people, and in the end it does no good to simply warehouse souls.