Texas District Attorney’s Office Accused of Unlawfully Withholding Defense Evidence

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A District Attorney’s Office in Texas is facing multiple accusations of intentionally withholding favorable evidence from defendants, and the accusations could have major impacts on at least two cases. In the first, a former Nueces County prosecutor filed suit against the Nueces County District Attorney in mid-December claiming he was fired for refusing to withhold favorable evidence from the criminal defense. Then, late last month, defense lawyers for Hannah Overton urged visiting Judge Mario Ramirez Jr., of Edinburg, to drop the murder charge because the prosecutor in the 2007 trial intentionally withheld evidence that would have proved Overton’s innocence.

Ex-prosecutor Eric D. Hillman alleged in his lawsuit against Nueces County that the “Defendant D.A. routinely instructs its employees to withhold evidence from criminal defense attorneys who represent criminal defendants—evidence which is favorable to the criminal defendants in their criminal cases.” Hillman claims his supervisor, a fellow prosecutor, told Hillman not to divulge a witness who said the defendant did not appear drunk. David Sims had been charged with intoxication assault and leaving the scene of an accident. Hillman was fired on the day of Sim’s criminal trial.

Breitbart Texas talked to Hillman’s lawyers, Chris Gale and Amie Pratt of the Gale Law Group in Corpus Christi, Texas. Gale said Hillman talked to a witness who had been with Sims all day who said he was not drunk. Hillman told his supervisor about this exculpatory evidence but she told Hillman he did not have to disclose it because he had discovered it. The prosecutor called the Ethics Department of the State Bar of Texas and confirmed that he must disclose this evidence. Hillman told his supervisor but her reply was, “You need to make a decision whether you want to be a prosecutor or a defense attorney.” Hillman was fired but was told only that he “did not follow instructions.”

The Hannah Overton case involves a Corpus Christi homemaker and mother of five who was convicted in 2007 of the murder of a four-year-old boy. She and her husband were in the process of adopting him. The boy died of salt poisoning and Nueces County prosecutors claimed Overton disciplined him by forcing him to eat salt.

In September, the Texas Court of Criminal Appeals ordered a new trial for Overton because her trial lawyers had provided ineffective assistance of counsel. The Court found they were ineffective for failing to call Dr. Michael Mortiz to testify about salt poisoning.

A Judge on the Court of Criminal Appeals, Cathy Cochran, wrote a concurrence in which Judges Elsa Alcala and Cheryl Johnson joined. This opinion set out numerous Nueces County prosecutorial misdeeds in the Overton case, including claims that the prosecutor may not have shared exculpatory evidence with the defense. The concurrence addressed the withholding of records showing the low sodium content of A.B.’s vomit when he was brought to the emergency room. It also discussed the issue of the alleged failure to disclose medical records, and knowledge that the child suffered from undiagnosed cognitive problems that caused him to have tantrums and eat inappropriate substances like salt.

The prosecutor who served as lead prosecutor in the Overton case testified that in 2007 she was an alcoholic and took prescription diet pills that affected her memory. She testified 72 times that she did not recall or did not know the answers to questions concerning the investigation or trial of Overton. She also testified that she did not recognize her handwriting on trial notes, she did not remember either writing or receiving emails from her email address, she could not remember if she saw any vomit when she previewed the evidence with defense counsel, and she did not remember asking the police lab to have it tested.

According to the Corpus Christi Caller Times, Overton’s defense lawyers argued that the trial prosecutor hid the child’s vomit which would have shown what he had eaten right before his death. The newspaper reported that the defense presented the prosecutor’s notes and emails showing the prosecutor communicated with investigators about the significance of the vomit.

Prosecutor Anna Jimenez, who worked with the Nueces County Assistant District Attorney on Overton’s prosecution, had previously testified that the prosecutor lied about the existence of the vomit. According to the Caller Times, defense lawyers played a video of this testimony.

Anna Jimenez was appointed to District Attorney by the Governor in 2010 but failed to win her election. She was defeated by Mark Skurka who is now the District Attorney. He was one of the few Democrats to survive the Republican wave that swept Nueces County in 2010.

While she was D.A., Jimenez fired the lead prosecutor in Overton for reasons unrelated to the case. In April 2013, Jimenez was indicted for aggravated perjury for allegedly falsifying affidavits in a murder case. The case against her was dismissed the month after she was indicted.

The Nueces County Medical Examiner testified in the 2007 trial that the boy’s death was caused by sodium poisoning and blunt head trauma. Another doctor later testified that new evidence would have caused her to rule that the child’s death was an accident.

Overton’s lawyers have asked the judge to dismiss the case. The defense told the judge they will come back to put on more evidence from witnesses, and will present the judge with more briefing.

The United States Supreme Court in Brady v. Maryland held that suppression by the prosecution of evidence that is favorable to a criminal defendant violates constitutional due process where the evidence is favorable to the accused’s guilt or punishment. Texas law charges prosecutors with the duty “not to convict, but to see that justice is done.” It also mandates that “[t]hey shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”

Texas SB 1611 was enacted after the Michael Morton case came to light. This law mandates that the State shall produce and permit the inspection and copying and photographing of evidence by the criminal defense. The Morton Act was signed into law in spring of 2013 and became effective January 1, 2014. It applies to offenses that took place on or after that date.

Michael Morton was convicted of murdering his wife and served 25 years before DNA evidence exonerated him in 2011. Ken Anderson, the prosecutor in Morton’s case who later became a judge, lost his law license and served jail time after it was later discovered that Anderson knowingly withheld evidence of Morton’s innocence. Anderson withheld a phone call transcript where Morton’s mother-in-law told a police investigator that her grandson and neighbors had seen a man in a green van parked in front of the Morton home. The 3-year-old grandson also said he saw a “monster” kill his mother when his father was not at home. Morton was convicted in Williamson County.

The Innocence Project provided the funding for the DNA testing that exonerated Michael Morton. According to its website, research conducted over a five year period in Texas and five other states have found that it is rare for a prosecutor to be disciplined.

Brian Wice, a veteran criminal defense lawyer who successfully appealed Tom Delay’s conviction, is also a nationally recognized legal analyst. Wice told Breitbart Texas “I can’t say I’m shocked that the management team in the Nueces County District Attorney’s Office would terminate a trial prosecutor for doing his job by turning over Brady material to the defense. My own experience with the Nueces County DA’s office fortifies my belief that it is an organization dedicated to winning at all costs, from its trial prosecutors to those appellate and post-conviction prosecutors tasked with defending unfair, unjust and unreliable verdicts. The high-ranking prosecutors who fired Eric Hillman for complying with the fundamental protections of the Michael Morton Act have the same “bullies in blue suits” DNA as the prosecutors whose handiwork in the Hanna Overton case was unmasked for what it was said by the Court of Criminal Appeals: a scorched earth policy that does what most fair-minded folks think is impossible, if not unheard of — convicting an innocent person.  The Hillman lawsuit could not happen to a nicer bunch of guys and gals.”

Breitbart Texas will follow-up on the Hannah Overton and Eric D. Hillman cases. A decision in the Overton case is anticipated in March.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2.


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