Legislators are currently considering changes to our criminal discovery statutes. Better late than never, some would say. Unfortunately, it took the tragic case of Michael Morton to even bring about the Legislature’s look at the criminal discovery statutes.2 The question remains whether there will be changes, and if so, will they be more than window dressing. But before I continue with this article, I want to tell you about a case Leonard Martinez handled in Williamson County. This case happened several years ago while Michael Morton’s lawyers were fighting to get the discovery that would ultimately free him. In this context, the case is striking for its irony. What follows are the details of that case.
Leonard was retained to represent a former client at the last minute. The client was about to take a plea to aggravated robbery. He allegedly robbed a bank. Leonard knew him from having represented him on aggravated assault charges—charges that ultimately got dismissed. Leonard had developed a relationship with him and his family. In other words, it was a good old-fashioned lawyer who had a long-standing relationship with his client, unlike some of the high-volume, quick-turn-around legal services that have come to dominate law practice nowadays. In an article I co-authored with Leonard in the Voice for the Defense that came out a couple of months ago, we expressed our concerns for this new style of “salesmanship” as opposed to “lawyering.” And by the way, every judge and attorney who read that article has been very supportive, with one exception. One lawyer confronted Leonard, accusing us of being ignorant and slanderous. I wonder why this lawyer felt personally attacked.
Back to the case referred to above. You will see the irony, as the county where this case took place was Williamson County. The prosecutor was Williamson County District Attorney John Bradley and the judge was Ken Anderson. (As an aside, Leonard has known Ken Anderson for a long time and feels quite conflicted, angry, and sad over the whole Morton incident.) The style of the case is State v. David Villarreal. David was accused of going into a bank in Cedar Park, handing the teller a threatening note, and fleeing with cash. The robber was caught on surveillance video. The person caught on tape sure looked like David. The officer who viewed the tape immediately “recognized” the perpetrator as David. Why? Probably because he had dealt with David on previous occasions.3
The officer pulled David’s mug shot and assembled a photo array. He showed this photo array to each of the bank employees. They all quickly, and without hesitation, picked David. Why? Probably because of the similarities between David’s features and those of the person who, in fact, robbed the bank. Could there have been an improper presentation of the array by the officer? Anything is possible, what with the problems with eye-witness identification. But, as you will see, there was no need for Leonard to challenge that aspect of the investigation. Why? Because there was a surveillance video with a fairly good image and other evidence that turned out to be compelling as to David’s actual innocence. But the challenge to the array was still there to be made if Leonard found it necessary.
After all of the employees picked David out of the photo array, the officer had the note checked for prints. An iodide fumigation was used and partials were extracted. The officer had the prints compared to those of David, and they matched with a fair number of points. Never mind the many problems inherent in identifying someone from a partial print, with only a fair number of points matching.4
Next, the officer found some notes that David had written while incarcerated on other charges. The handwriting analyst said the handwriting on the note matched David’s handwriting on his previous written letters. Never mind that comparing hand writing is an art, not a science, and the comparison is a very subjective opinion, at best.
And if that was not enough, two of David’s cousins had been charged with a felony hindering, a third-degree felony. Why? Because allegedly after a warrant was put out for David, the cousins gave David and his wife a ride to a motel. These poor cousins were represented by the same lawyer who took them in to Bradley for a debriefing after they had been arrested and posted bond. In exchange for a plea of five years deferred adjudication, they would testify that David admitted to the robbery.
When Leonard walked into court to file his motion to substitute, he did not have all the details. Leonard only knew the charge—and that he was being asked to represent someone whom he had previously represented.
He met with David, who was in custody. David told Leonard that the lawyer he was replacing had gotten a plea agreement. The agreement was that in exchange for a guilty plea, Bradley would recommend 40 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition, Bradley would not charge his wife as an accomplice. David told Leonard he was ready to accept the offer.
Now remember, Leonard knew David. And in Leonard’s mind, this guy was no bank robber. He tended to be manic and even violent at times, but a robber he was not. So Leonard asked him to look him in the eye and tell him whether he robbed the bank or not. He said he did not but he wanted to take the deal to make sure his wife was not charged. Leonard persuaded him to hold off and not take the deal and allow him to substitute in, to which David agreed.
After the substitution order was signed, John Bradley took Leonard into the jury room, shoved two boxes—the type you store files in—at Leonard and said, “Let’s see you do your magic on this one.”
As Leonard was looking through the contents of the boxes, he told Bradley, “Well, I guess we will have to see.”
John started telling him what he had and what was in the box. And as he was being brought up to speed on the case, Leonard would recall that he was thinking: Holy crap! What in the hell have I gotten myself into?
Bradley not only allowed Leonard to look at everything in the two boxes. He told him, “I will get you anything you want or need.”
Leonard, in recounting the story, said: “When John told me this, I knew I was screwed. He must have such a strong case that he was going to violate his own closed-file policy. What hubris! So what was I going to do now?”
After he composed himself, he began to do what lawyers should do—take it one step and one issue at a time and by the numbers, as they say.
John was giving him everything he asked for. The first task was to get a copy of the surveillance video to examine it and, if necessary, have it enhanced by an expert. Second was getting a copy of the fingerprints lifted from the note and have them compared to David’s known prints. A request was made for a copy of the note David was supposed to have handed the teller.
Leonard also began to build his defense team by getting a good investigator. The surveillance tape was not clear enough to really make a definite identification, so the tape was taken to an expert in video enhancements.
The next thing was having the prints compared by an expert. One thing that was seen on David’s prints, and not on the partial from the note, was a line across the center of David’s print. It was determined that the line was caused by a scar from a cut David had on the finger that the print was supposedly matched to.
By this time, Bradley had assigned another prosecutor to handle the case. That prosecutor looked at the discrepancy in the prints but attributed the discrepancy to a copy error. So when David appeared in court, Leonard asked Judge Anderson if they could have David fingerprinted in court by the bailiff. He said okay and prints were taken. Lo and behold! The skin fold anomaly, as Leonard referred to it, appeared. Oops! That was no copying error. It was a scar! A scar that was not on the actual robber’s finger.
While all this was being done, the investigator was checking for anyone who had been arrested for bank robbery with a similar modus operandi (MO). The investigator was able to identify a couple of people who had been arrested for bank robbery with a very similar MO.
One of persons identified by the investigator was a man named Estrada. This Estrada just happened to be in the Williamson County Jail, charged with bank robbery. Bradley was asked if he would please provide Mr. Estrada’s mug shot with profile and his fingerprints. And to everyone’s amazement, Bradley gave them to the defense. Surprise! Mr. Estrada looked very much like the person on the surveillance tape. More so than David, upon close examination.
The enhancement on the tape was done and the image was much clearer. And as Leonard stared and stared at the image of the robber, it hit him like a baseball bat to the forehead. “Damn, this guy does not have a necklace tattoo around his neck and arms!”
The enhanced tape showed the bank robber wearing what looks like a muscle shirt; and it was very clear this man had no tattoos. None. Nothing like those that David had. Because Leonard had a lawyer-client relationship with David, he knew him and knew he had those tattoos long before this robbery occurred. Leonard’s gaze was just fixed on the image, saying over and over again, “Damn, damn, what the hell is going on?” Why would David have told his cousins he had done this when the “overwhelming evidence” showed he had nothing to do with the crime. Bradley’s case was starting to unravel.
And even though Leonard knew David had those tattoos before the robbery, he pulled old booking photos so there could be no argument as to when those tattoos were on David.
While the defense was working on the case, a pastoral counselor called Leonard to tell him he was visiting with David and wanted to offer his support. Leonard—not missing an opportunity for information—asked this counselor whether he was also seeing another inmate by the name of Estrada. The counselor said he was one of his clients.
And then Leonard did something that some might say was on the ethical edge, although that is debatable. To me, it was performing the function in the fullest sense of the Sixth Amendment. Leonard told the counselor that there was reason to believe David may have to be punished for something Mr. Estrada had done. It was left at that, with nothing else said.
A couple of weeks later, Leonard received a call from a very excited counselor. “Mr. Martinez, you will not believe . . .”
After Leonard asked him to calm down, slow down, and to tell him what he was talking about, the counselor told him. For a moment there was the fear that David had confessed to the counselor. That would have been a shot to the heart. No, he told Leonard that Mr. Estrada had not only confessed but had confessed in writing and asked the counselor to have the confession letter given to David’s lawyer. As Leonard recounts, “It took a couple of minutes to gather myself up from the floor. But then I thought, oh hell, his lawyer is going to be pissed!”
But the truth was the truth, and justice would not be served with David, who now was clearly innocent, being convicted of something Mr. Estrada had done.
Mr. Estrada’s handwritten confession was turned over to the prosecutor. No very long after the confession was turned over, the prosecutor handling the case said, “Leonard, I have some Brady material I have to disclose.” And he added, “Leonard it seems you have somehow f—d up my case.”
When David and Leonard appeared before Judge Anderson at jury docket call the State of Texas filed a motion to dismiss.
So what about Mr. Estrada? Well, the lawyer was indeed a bit miffed, but as a result of his expressed displeasure, his client got a better deal for pleading to now two cases concurrent rather than to the offer he had previously for one. And what about the two cousins who a lawyer pled guilty and had gotten to agree to testify against an innocent man? I do not know what ultimately happened, although I hope Bradley would move to dismiss.
The cousins had come to Leonard’s office and asked him if he would represent them. They felt they were pressured by their lawyer to plead, even though they, too, were innocent. They said they did not know that there had been a warrant issued for David’s arrest, and that David never admitted to robbing the bank. It is disgusting what they were “counseled” into doing. Leonard told them that they should consider seeing another lawyer about filing a writ.
Full and complete disclosure and cooperation from a prosecutor that was not known for much, if any, disclosure and cooperation resulted in a complete exoneration before the case went to trial. David’s case illustrates why full and complete discovery is so extremely important.
Of course, we lawyers must carry on our own investigation and must do something with the information acquired. So as the Legislature continues to debate the merits or demerits of full, open, and complete discovery, we must tell them we need real change. We must do so in a loud voice, as an organization and as individual lawyers. It is for the sake of truth and justice. It is for the wrongfully convicted, like Michael Morton. And we need to encourage the legislators to consider the discovery practices of other states, particularly Florida and Missouri, where witnesses and complaining witnesses can be deposed. The experience in those states has been very positive, resulting in more cases being resolved by agreement, whether through pleas or dismissals.
Let us all continue to push for change. We as lawyers have a special calling not only to defend the accused but also to defend our constitutions and improve the administration of justice.
As the title of this article says, the truth will set you free. It certainly did for Michael Morton, just as it did for David.
1. John 8:32
2. Isn’t it ironic that a civil defendant has far more discovery rights than someone whose liberty, or life, is at stake?
3. This is an example of confirmatory bias—you “find” what you expect to find or what you are looking for. To the police officer, David was a known criminal.
4. Never mind the case of Brandon Mayfield, the Portland, Oregon, lawyer who was incorrectly identified by the FBI as being involved in the Madrid train station bombings. The prints that the FBI used to incorrectly identify Mr. Mayfield had more points than the partial prints that were used to “finger” David.