2015.42: Harris County Welcomes Dallas Prosecutors

 Posted on February 28,2015 in Uncategorized

What do you do if you're a District Attorney running an office that is under fire for prosecutorial misconduct and in the middle of a hearing (in which current and former prosecutors contradicted each other, themselves, and the documentary evidence) over whether the office hid exculpatory evidence of alternate suspects in a murder case?

If you're Devon Anderson, you hire a former Dallas County ADA who is the subject of a motion for new trial for hiding exculpatory evidence in a murder case.

Fortunately we criminal-defense lawyers have started talking to each other of late. Here's the book on three new Harris County ADAs, refugees from the Dallas County DA's Office, from one of the Dallas brethren:

Danielle Uher: She withheld evidence on a high profile case and then lied about it to the judge. We have it all on the record. She also improperly contacted a consulting expert and tried to get him to spill the beans on the defense strategy. She is a bully who takes advantage of weakness and only responds to bully in return. She will interrupt and talk over and down to you AND the judge. The louder she argues, the more wrong she usually is.Andrea Mosley: She is a former cop and doesn't believe there is anything such thing as an innocent defendant. If they've been arrested, they're guilty. She also doesn't believe in mitigation. If you're 1% wrong, you're a 100% wrong and there is nothing in between and no excuse for any wrongdoing. Once we had a defendant who was arrested for stealing food and she offered prison time because, "He's a thief and I don't like thieves. At least in prison, he won't have to steal to eat." She is very frank and you will always know where you stand. She holds the defense bar in utter contempt, and generally doesn't work and play well with women.Andrea Handley: She's the nicest one of the bunch, but is also the most manipulative of them as well. She will try to lull you into a false sense of security and then sticks a shiv between the 3rd and 4th ribs. Document document document and then document your file some more. A paper trail is the best way to deal with her.

All good to know, more in the nature of a cautionary tale rather than actionable intel. It's mostly things that could fairly be said of some members of the defense bar: poor social skills, contempt for the adversary, zealotry, manipulation.

When Uher talks over Jim Wallace or down to Susan Brown, I want to be there.

Mosley sounds like a prosecutor in the mold of Justin Keiter, trying to prove to the world her authoritarian credentials; I hope she doesn't get butt-hurt like Justin does when I call him a boring little fascist. I see a place for prosecutors such as them; they have to be watched especially closely, though, both by the defense bar and by whoever in the DA's Office cares about ethics, because zealotry often leads to ethical lapses.

Handley will fit in just fine; nice-and-manipulative prosecutors are a dime a dozen at the Harris County Criminal Justice Center; the advice for dealing with her should be the rule among defense lawyers rather than the exception.

Here (PDF copy of opinion), though, is some actionable intel: a Fifth Court of Appeals opinion from this week dealing with Uher:

Appellant supported his motion with affidavits from Navarette and appellant's trial counsel, Andy Beach. In his affidavit, Navarette stated that in his pretrial interview with Assistant District Attorney Meredith Behgooy, he told her that the black SUV had pulled "behind" his van on Elm Street and that he had made the sudden stop at the intersection because Ramirez had gotten out of the van so fast. Navarette also stated he had volunteered to testify at trial and was sworn in as a witness, but that Behgooy told him he had an outstanding warrant for "criminal mischief" and that the "best thing would be for [him] not to show up at trial because there was a probability of getting arrested."According to Beach's affidavit, at the same time Behgooy suggested that Navarette not show up for trial, she told Beach that appellant did not need to subpoena Navarette because he would be testifying at trial as a State's witness. On the day of trial, however, Behgooy and her supervisor Danielle Uher, told Beach that Navarette was not present for trial and would not be testifying after all. The State then refused to request a writ of attachment to secure Navarette's presence. The trial judge nevertheless issued a writ because Navarette had been previously sworn as a witness.Beach said the State did not tell him that Navarette would be available to testify until after Orosco had testified. He further said he did not know what Navarette had witnessed until he was testifying on the stand. According to Beach, Navarette's account substantially bolstered appellant's claim of self-defense and, if he had known that Navarette could provide favorable evidence, it would have altered his presentation of the case, including his opening statements, the manner in which he questioned Orosco, and his advice to appellant on whether to testify.

So according to witnesses Behgooy told an exculpatory witness to make himself scarce and told defense counsel that the witness would be testifying as a state witness. Then Behgooy and Uher told defense counsel that the witness would not be testifying after all, and did not request a writ of attachment. Fortunately, the defense was entitled to rely on the State's subpoena, and could get a writ of attachment. Unfortunately, the State's hiding of the ball (concealing Navarette's story and trying to disappear Navarette) adversely affected the defense.

At the motion for new trial hearing, the trial court heard the prosecutors' testimony ex parte and sealed the transcript of their testimony. The Dallas Court of Appeals reversed for a proper hearing and ordered the transcript unsealed (rest assured that you'll see it as soon as it's out).

I don't expect Anderson to inquire too closely into the reputations of the prosecutors she hires. I wouldn't ask the prosecutorial bar about defense lawyers I was considering hiring, but I don't have the duty to see that justice is done.

I had an unfortunate encounter last year with a misdemeanor Harris County prosecutor who thought it was okay to tell a subpoenaed witness who had exculpatory information not to turn up for trial; maybe witness-hiding prosecutors are just what Anderson is looking for.

Was Meredith Behgooy not available?