Conduct Unbecoming: Prosecutor Dealt Another Slap
Court finds assistant D.A. withheld evidence
For the second time in less than two years, Assistant District Attorney Stephanie McFarland has been found by a court to have engaged in prosecutorial misconduct by failing to turn over evidence favorable to a defendant. According to a May 28 ruling by Travis County District Judge Charlie Baird, McFarland "thwarted efforts" by a defendant's attorneys to discover details about the state's key witness in his case, evidence that could have changed the outcome of his trial. "Prosecutorial misconduct will not be condoned or encouraged by this Court," Baird wrote.
District Attorney Rosemary Lehmberg disagrees with Baird's findings. In a statement to the Chronicle, Lehmberg said she does not believe McFarland intentionally withheld any evidence from a defendant. McFarland is a "dedicated and ethical prosecutor," she said. "If I thought for a minute that she had intentionally withheld or suppressed evidence favorable to a defendant, she would no longer be working in my office."
At issue was the 2006 conviction of Danish Sheikh for allegedly strangling his girlfriend in a parking garage in 2005. Sheikh was convicted and sentenced to five years probation, but Baird's ruling overturns that verdict. Crucial to the conviction was whether there was any medical evidence that his then-girlfriend, Eiko Blaney (who survived the attack and testified at Sheikh's trial), had been manually strangled. The first physician to see her at Seton Medical Center, Dr. Alois Duska, said there was no such evidence. Forensic pathologist Dr. Charles Welti shared the same opinion and also said he did not believe the state's key witness, Dr. Michael Edwards, had the experience to determine that Blaney had been strangled.
The state relied heavily on Edwards' self-professed expertise and training in emergency room medicine to build its case: At Sheikh's 2006 trial, Edwards testified to his extensive training and said that he'd actually served as "chief" of the Ben Taub Hospital ER in Houston – "the fourth busiest trauma hospital in the United States," Edwards said.
As it turned out, Edwards hadn't actually been chief of the ER, although that wasn't something Sheikh's attorneys, Joe Turner and Terry Kirk, knew at the time. In fact, it wasn't until well after Sheikh was convicted that his appeal attorneys, David Botsford and Rick Wetzel, discovered that the state had withheld from Turner and Kirk a copy of Edwards' curriculum vitae. Turner and Kirk had asked for one, but McFarland told them the state did not have one available. The state did receive Edwards' vitae during the trial, a day after Edwards testified, but failed to turn it over to Turner and Kirk. Had the attorneys seen the document at trial, they testified at a 2009 hearing in Baird's court, they would have had the opportunity to impeach Edwards' testimony and perhaps change the outcome of the trial.
Indeed, Baird noted in his ruling, Sheikh's case came down to a battle of experts, which he said McFarland clearly recognized because in her closing arguments to the jury she highlighted Edwards' self-professed expertise as important to the state's case. "McFarland's misconduct went to the heart of the controversy," Baird wrote. "She thwarted efforts by [Sheikh's] trial counsel to discover such favorable evidence. And she specifically relied on the credentials trial counsel was unable to challenge on cross-examination in urging the jury to convict."
As noted above, this is the second time that a court reviewing McFarland's trial work has concluded that she engaged in behavior designed to deny a defendant access to favorable evidence. In early 2009, a three-judge panel of the 3rd Court of Appeals ruled McFarland had withheld evidence from 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. They found that McFarland withheld statements a witness said Hall made to her after the killing and withheld information about another witness' inability to pick out Hall in a lineup. Hall has been granted a new sentencing trial, slated to begin June 28. Meanwhile, attorney Joe James Sawyer, who represents Hall, is asking Judge Wilford Flowers to remove McFarland from the Hall case.
In his ruling last week, Baird concluded McFarland's actions were serious enough for him to vacate Sheikh's conviction. But Lehmberg, after reviewing the ruling, said she believes Baird overemphasized the importance of Edwards' résumé. "However," she said, "judges are granted broad discretion in matters such as these," though she does not believe that McFarland did anything unethical. More important, she said, is the fact Sheikh's conviction was overturned: "We need to focus on what is really important in this matter, and this is Danish Sheikh," she said in the statement. "We intend to retry Sheikh because we believe he is dangerous and needs to be supervised."