Is the D.A. Hiding Evidence?
Judge Baird wants some answers from an assistant district attorney
Did Travis County Assistant District Attorney Stephanie McFarland try to conceal from a defendant the false testimony of a state witness? Moreover, is this sort of suppression of evidence becoming a habit for McFarland?
Those are among the questions District Judge Charlie Baird will be asked to consider in a hearing for Danish Sheikh, who was sentenced to five years probation in 2006 for allegedly attempting to strangle his girlfriend in the Dobie parking garage. (The woman survived and testified in the original trial.)
According to defense attorneys David Botsford and Rick Wetzel, McFarland failed to disclose to Sheikh's original trial team the fact that the state's key witness, Dr. Michael Edwards, exaggerated his training and lied about his professional experience while testifying that he saw signs on Sheikh's girlfriend, Eiko Blaney, that proved to him she'd been manually strangled. Edwards' testimony directly conflicted with the opinion of the first doctor to see her, Dr. Alois Duska at Seton Medical Center, as well as with the expert opinion of forensic pathologist Dr. Charles Wetli, who testified for the defense that there was no sign of manual strangulation and that he did not feel Edwards was qualified to make that kind of determination.
The D.A.'s Office, however, has argued that McFarland did nothing improper or illegal and that it did try to provide to the defense documents that contained details about Edwards' background – documents the defense turned down at trial.
Central to the argument that McFarland acted inappropriately – that she either knowingly encouraged the doctor to lie on the stand or failed to correct what she would later discover was exaggerated testimony – is Edwards' curriculum vitae, which Sheikh's trial lawyers, Joe Turner and Terry Kirk, say McFarland never gave them during trial. Edwards, who got his Texas medical license in 2001, sounded like a pretty knowledgeable expert, recalled Turner. He had 15 years of medical experience, he told the court, and at one point served as chief of the emergency room at Houston's Ben Taub General Hospital, which he called "the fourth busiest trauma hospital in the United States."
That Ben Taub is one of the nation's busiest trauma hospitals is absolutely true; that Edwards ran its emergency room, it turns out, was not. But that was not something that Turner or Kirk knew at trial, Turner testified this month. He had asked for a curriculum vitae, he recalled, but McFarland said she didn't have one available. "I was very surprised," he said. While there isn't a specific law that would require the state to turn it over, Turner – a former Travis County assistant D.A. and former assistant U.S. attorney – said that providing such information is standard. "I was surprised that she [might] not go over the CV prior to [Edwards'] testimony and then would not provide it, knowing [the defense would want] to go over it."
Interestingly, the D.A.'s Office received a faxed copy of the CV while Sheikh's trial was ongoing, on the day after Edwards testified about Blaney's injuries. But it was never provided to Turner, he testified, even though he'd asked for it. If he had gotten it, Turner said, he would have had an opportunity to impeach Edwards' testimony. There is no mention on the CV of his having served as chief in the Ben Taub ER, and the document reflects that Edwards' 15 years of medical training would have included unrelated studies toward a doctor of philosophy degree. Sheikh's case was a "battle of experts," agreed Turner; "Naturally, the first question is, you want to look at the expert's CV."
Moreover, it turns out that the day Edwards saw Blaney at the Huntsville Memorial Hospital ER (where Blaney went for care following the incident), he wasn't even supposed to be working there. Indeed, Sheikh's current lawyers, Botsford and Wetzel, discovered that Edwards had not received permission from the Baylor College of Medicine (where he was a resident) to be "moonlighting" in Huntsville, and he was subsequently suspended from medical school for having done so. (Since the Sheikh case, it appears that Edwards has run into yet more trouble: In 2008 he had his California medical license suspended for prescribing pills to himself and then lying about it to medical board investigators.) Whether the D.A.'s Office knew about Edwards' infraction and suspension is unknown.
Representing the D.A.'s Office (and McFarland), Assistant D.A. Michael Taliaferro has argued that there's no evidence that Edwards actually misrepresented himself: He was a chief resident in the Ben Taub ER; he had 15 years of experience, including all of his post-graduate course work; there is no "rule of law" that requires the state to provide a CV; and there is no rule or law that requires a person to include within their CV the details of every position they've held. Turner was able to cross-examine Edwards at Sheikh's trial and to call into question, for example, the breadth of experience the doctor claimed to have. Moreover, the trial record reflects that McFarland was "willing to help" Turner "secure a copy" of Edwards' CV – but, McFarland testified recently, Turner did not take her up on it.
That is simply not true, Turner countered in court: "Absolutely not. ... [I'd] never seen it."
McFarland never gave him a copy? Botsford asked. "No," Turner replied.
Part of the issue, Sheikh's lawyers argue, is that this isn't the first time McFarland has hidden evidence from the defense. In the case of Laura Ashley Hall, who was accused of helping Colton Pitonyak flee to Mexico after the murder and dismemberment of Jennifer Cave in Pitonyak's West Campus apartment, the 3rd Court of Appeals found that McFarland withheld from the defense information about alleged statements Hall made to a state witness, Nora Sullivan, about Hall's involvement in the crime. Moreover, the court found that the state failed to disclose the fact that its only witness at Hall's sentencing hearing had been unable to identify Hall in a photo lineup. That information was brought to Hall's attorney, Joe James Sawyer, by the witness, former Austin cabbie Doug Conley, after the trial – and ultimately provided the basis for the 3rd Court to remand Hall's case for a new sentencing hearing. (The state has asked for a reconsideration of that decision.)
In the case of Sullivan, the court ruled that the state had "acted willfully in failing to disclose the statements" to Sawyer, and in the case of Conley, it concluded that the evidence the state withheld was material – "had it been disclosed and used effectively, it would have placed the State's punishment case in such a different light as to undermine the confidence in the verdict and give rise to a reasonable probability of a different outcome," Justice Bob Pemberton wrote for a three-judge panel.
Sawyer testified in the Sheikh hearing that although there was a signed discovery order in the Hall case, McFarland failed to turn over the evidence about Sullivan's testimony and that it was Conley who finally approached him to say that he'd been unable to identify Hall and that McFarland had told him that would not be a problem. "I was absolutely stunned," Sawyer recalled last week. "In the criminal courts ... trust is paramount."
A ruling in the Sheikh case is still pending while attorneys try to locate Edwards to testify.