(C) El Paso Matters.org
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Judge rules El Paso DA illegally withheld evidence in at least 5 rural cases [1]
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Date: 2024-12-15
ALPINE, Texas – The El Paso District Attorney’s Office “intentionally” and “with gross negligence” withheld evidence from public defenders in rural West Texas, a judge said in a scathing ruling that said prosecutors “systematically failed to comply with their obligations” under Texas law.
“The prosecution routinely and systematically failed to seek, obtain, and timely produce or promptly supplement to the defense material, relevant, and possibly exculpatory evidence possessed by the state,” Judge Roy Ferguson of the 394th District Court in Alpine wrote in a Dec. 9 ruling.
“As a result, defendants were forced to unwittingly evaluate plea offers, accept or reject plea agreements, and announce ready for trial without ever seeing material and potentially exculpatory evidence possessed by the state,” wrote Ferguson, whose court is in Alpine about 200 miles southeast of El Paso and whose jurisdiction covers Brewster, Culberson, Hudspeth, Jeff Davis and Presidio counties.
District Attorney Bill Hicks said his office may appeal Ferguson’s ruling after reviewing the transcripts of three days of hearing. He said he respectfully disagreed with the judge’s ruling.
The ruling involved defendants represented by the Far West Texas Regional Public Defender, which serves indigent defendants in five rural counties. The public defenders alleged prosecutorial misconduct by the 34th Judicial District Attorney’s Office, which prosecutes cases in El Paso, Hudspeth and Culberson counties.
After the public defenders filed a motion for dismissal in 15 cases, the District Attorney’s Office filed a response that accused the defense attorneys of filing frivolous motions and asking Ferguson to issue sanctions against them that could have included disbarment.
Paul Chambers, the first assistant public defender who brought the motion for dismissal, said prosecutors were using the sanctions request to bully him into not pursuing the prosecutorial misconduct allegations.
“I don’t like bullies. That’s why I do this work. It just solidified that I’m just going to go through with it now,” he told El Paso Matters on Thursday.
Hicks said if anyone was bullying, it was the 12-person team in the Far West Texas Regional Public Defender. He said they issued subpoenas for the hearing to him and two employees at their home addresses.
“We don’t ‘bully’ anyone. We don’t need to do that. Especially someone as minor as the Far West Texas Public Defender’s Office,” Hicks said in a statement to El Paso Matters.
In his written ruling Dec. 9, which followed a Dec. 4 order from the bench, Ferguson denied the prosecution’s request for sanctions. He stopped short of granting the defense motion for dismissal of charges, but he barred prosecutors from using key evidence in five cases because the information had not been timely shared with the defense through a process known as discovery.
Ferguson denied relief sought by the public defenders in 10 other cases.
The public defender is seeking dismissal of three other Hudspeth County cases before 205th District Judge Francisco Dominguez on similar allegations of prosecutorial misconduct in withholding evidence from the defense.
James McDermott, who has led the Far West Texas Regional Public Defender office since it was created in 2017, said that he has been raising concerns for several years with Assistant District Attorney Kevin Marcatel about evidence that should have been provided to the defense.
He said he has not had similar problems with prosecutors in other counties his office serves.
McDermott said Marcatel repeatedly said he was providing everything required by law. The judge’s ruling from the bench on Dec. 4 had a powerful impact on McDermott.
“It was the first time, when he started talking, where I thought, we’re not crazy. Because it felt like for years, as Mr. Marcantel told us over and over again, that we were wrong, and we were lying, and the stuff didn’t exist, and he’d given the stuff to us … I thought, maybe I’m wrong. And to hear the judge say those things, there is a part of me that just was relief, like somebody heard, and maybe this gaslighting will stop,” he said.
Marcantel didn’t respond to a request for comment from El Paso Matters. Hicks said the District Attorney’s Office has complied with the law on discovery.
“The discovery production process is generally a very straightforward process and flows automatically. It appears that there may be some issues with how that process was functioning in Hudspeth and Culberson counties, however the end result was that the defense received their production that they were entitled to under the Code of Criminal Procedure,” Hicks said in a statement to El Paso Matters.
Judge Roy Ferguson
Ferguson saw things much differently, saying that prosecutors had not provided evidence to defense for months or years after being ordered to do so. He said the District Attorney’s Office “systemically and systematically failed to comply with their (discovery) obligations under Texas Code of Criminal Procedure 39.14 for cases in Culberson and Hudspeth Counties.”
“The prosecution’s violations were caused not by inadvertence or mere negligence, but by systematic conduct rising to the level of gross negligence,” he wrote in the order. He was first elected to the bench in 2012 and is leaving at the end of the month after not seeking re-election.
Ferguson found that in one case, where prosecutors hadn’t turned over evidence two years after he ordered them to do so, “the State intentionally failed to comply with 39.14 and this Court’s discovery orders.”
He said the violations in five cases “caused actual prejudice and harm to defendants, and violated defendants’ constitutional rights.”
The incoming DA’s view
James Montoya, who defeated Hicks in the Nov. 5 election and takes office on Jan. 1, said Ferguson’s findings were “disturbing.” He said he would review the transcript before deciding on an appeal, but said he wants “to give the deference to the judge’s order.”
James Montoya
“I think that the failure is totally inexcusable. As soon as I take office, I plan to conduct a comprehensive review of what happened, but more importantly, how and why it happened,” Montoya said in an interview with El Paso Matters. “Part of the review is going to determine what the appropriate disciplinary action to take is. At a minimum, I can tell you that it’s going to include remedial training on our statutory and constitutional discovery obligations.”
Montoya on Dec. 9 shared his reorganization plan with the staff of the District Attorney’s Office that will be effective Jan. 6. The reorganization moves Marcantel from the Hudspeth and Culberson county courts to serving as a prosecutor in 34th District Judge Bill Moody’s El Paso courtroom.
The incoming district attorney said the Ferguson ruling played a role in the reassignment.
“I think, based on my conversations with those defenders, I did think we needed a change of personnel handling our down district cases. And so that was part of the motivation for the reassignment,” Montoya said.
Discovering a failure in discovery
The discovery process, where people accused of crime get to see evidence compiled by police and prosecutors before going to trial, is a fundamental component in meeting the constitutional guarantees of a right to a fair trial.
In Texas, state laws and a long string of court rulings outline what prosecutors must turn over to the defense. That includes “exculpatory evidence,” which could favor the defendant.
On Oct. 8, Chambers from the Far West Texas Regional Public Defender went to the DA’s Office in El Paso to review video evidence in six cases involving child sex abuse. The District Attorney’s Office requires that defense lawyers view video interviews of child sex abuse victims in their office.
When a DA investigator put in a disc with the videos, Chambers said he could see it contained more than 1,500 files on one case – far more documents than the DA had turned over to defense lawyers.
“I took notes on what I could see and then came back here to look and see if we had some of the stuff that I took notes on. It turned out we didn’t. That was too much stuff to be an oversight,” Chambers said.
The next day, he filed motions to dismiss two cases on the grounds of prosecutorial misconduct. Eventually he filed such motions in 18 cases – 15 before Ferguson and three before Dominguez.
James McDermott, left, and Paul Chambers of the Far West Texas Regional Public Defender based in Alpine, Texas. (Robert Moore/El Paso Matters)
In response to one of those motions, involving Brandon Hagan, charged with child sexual abuse, prosecutors accused Chambers of filing frivolous motions and asked Ferguson to impose sanctions that could have led to disbarment for Chambers and McDermott. The response was submitted by Hicks and Assistant District Attorney Erin Delaney Matney.
The 18 motions for dismissal were “frivolous, groundless, and improper” and “intended to harass the State,” Hicks and Matney wrote.
The response acknowledged that prosecutors still had not turned over evidence 24 months after Ferguson ordered them to do so. But prosecutors said Texas law set no timeframe for compliance with such an order.
“There is no defined period of time for the State to comply with production of discovery nor definition of ‘as soon as is practicable’ and the State is actively working to obtain items of discovery to produce to Defendant in this case,” the response said.
Ferguson held hearings on the 15 motions before him on Nov. 18 and 25, and on Dec. 4. El Paso Matters was not present at the hearings and the transcript is not yet available.
Chambers and Marcantel both testified during the hearing, the public defenders said.
Marcantel testified that he knew he wasn’t providing discovery in a timely manner and informed his superiors, including Hicks, McDermott said.
“He testified that he was blaming that on his staffing issue. But he testified that he’d been telling them that for over two years and had gotten no action from them to change it. So the thing that was remarkable to me was that he testified that his entire chain of command knew.”
Hicks said McDermott is mischaracterizing Marcatel’s testimony.
“We dispute that Mr. Marcantel testified that he told anyone on his chain of command that he was not providing discovery in a timely manner. His testimony was that he had complained up the chain of command, all the way up to me, that he believed that he was understaffed and needed additional resources. He never indicated that there was an issue with discovery production,” Hicks said.
Do the problems extend to El Paso?
Ferguson’s findings only addressed cases in Hudspeth and Culberson counties. But defense lawyers say the failure to turn over evidence to the defense also occurs in El Paso – an accusation Hicks heatedly denied.
“It is currently in vogue among defense attorneys to claim that the prosecution is ‘hiding evidence’ or committing ‘prosecutorial misconduct’ without actually presenting any evidence of such behavior. It is easy to make bald allegations. It is quite another to produce actual facts,” the district attorney said.
Defense attorneys for the man accused of murdering 23 people at an El Paso Walmart have alleged prosecutorial misconduct in that case, including claims that prosecutors have failed to turn over discovery evidence in a timely and understandable manner. District Judge Sam Medrano is conducting hearings on those claims but has not issued any rulings.
Two investigators for the Walmart defense team attended Ferguson’s hearings in Alpine in November and December, McDermott said.
Joe Spencer, one of the attorneys for the accused Walmart gunman, declined to talk with El Paso Matters, citing a gag order by the judge in that case.
District Attorney Bill Hicks, left, and defense lawyer Joe Spencer, center, argued at a Sept. 12, 2024, hearing in 409th District Court. At left are Walmart mass shooting defendant Patrick Crusius and defense attorney Mark Stevens. (Ruben R. Ramirez/El Paso Inc)
McDermott said it was damning that Marcantel testified that nothing changed after he complained all the way up to Hicks.
“That should concern everybody in all three counties, that there are lawyers in that office that, knowing that there’s a problem, didn’t care about it,” he said.
Kelli Childress, who has led the El Paso Public Defender’s Office for the past four years, said the El Paso criminal justice system is plagued by prosecutorial failures that go unfixed. She said change is unlikely in the District Attorney’s Office because of an “absolute, utter lack of accountability.”
“Our justice system has not evolved at all, nowhere near the pace of even the rest of the state, let alone the rest of the country. I don’t know. We’ve been in a rut for decades,” said Childress, who was a public defender in Illinois before moving to El Paso.
Public Defender Kelli Childress leaves the courtroom on Aug. 15, 2022, after Jail Magistrate Humberto Acosta granted her motion to dismiss dozens of cases due to the district attorney’s inaction in bringing indictments. (Corrie Boudreaux/El Paso Matters)
“As a prosecutor, you get to be the good guy. Why would you ever want to blur the lines between being a good guy and being a criminal? Every time prosecutors encroach on the territory of criminals, you have no choice but to lose trust in them in every way. If we can’t trust our prosecutors as a society, we’re in big trouble,” she said.
Hicks said El Paso often is a leader in criminal justice reforms.
“I would disagree with her regarding El Paso’s reluctance to embrace change, particularly change that benefits defendants. Are you aware that El Paso is the only jurisdiction in the state of Texas that mandates that every defendant in the county jail receives a bond reduction hearing after incarceration for 48 hours? No other jurisdiction in the state does that. It is not required under the law, yet El Paso, being more progressive than any other location in the state of Texas does this,” Hicks said.
During the district attorney election campaign, Montoya frequently criticized Hicks’ leadership of the DA’s Office, especially when it came to staffing.
Montoya served as a public defender in El Paso for two years before his election, and has spent most of his career as a prosecutor. He said he sees problems with the District Attorney’s Office, but he doesn’t believe they include intentional efforts to rig the system to the detriment of defendants.
“There are these systemic issues that, in my opinion, are the result of the critical understaffing of the office. What happened in these cases I think was an entirely predictable consequence of how short staffed the office is right now,” Montoya said.
What comes next
McDermott and Chambers of the Far West Texas Regional Public Defender said they will be closely monitoring how the prosecution complies with its obligations to turn over evidence.
“I know there’s a new administration coming in, but now, if I choose to trust the way I’ve trusted in the past, I think that I can’t be doing a good job, because then I’m failing my clients,” McDermott said.
The public defenders also will review past cases that ended in convictions or guilty pleas.
James McDermott
“We are going to have to go through every conviction we’ve done with Mr. Marcatel, any plea we’ve done, and consider it for a post-conviction writ, for an involuntary plea,” McDermott said.
Chambers and McDermott said they’re haunted by one case in particular, where a client they believed was innocent pleaded guilty. Chambers suspected the prosecutors were withholding potentially exculpatory evidence, but the client pleaded guilty against his advice because he was scared.
“It was a crushing experience for this office. There were people here who questioned whether they wanted to do this work anymore,” McDermott said.
They want to explore overturning his conviction, which they acknowledge will be difficult.
“We are going to have to file a post-conviction writ of habeas corpus. We’re going to have to claim that the plea was involuntary because of the missing discovery,” McDermott said.
He said the consequences of prosecutorial misbehavior extend beyond what happens to defendants.
“It calls into question the integrity of the entire judicial system. I think what Judge Ferguson said from the bench, one of the things that bothered him, was that he is now in the position of having presided over convictions that were done unjustly. And that has to concern everybody in a democracy,” McDermott said.
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https://elpasomatters.org/2024/12/15/el-paso-district-attorney-prosecutorial-misconduct-ruling/
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