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In the Chabot case, the non-deal helped Pabst to come across as the truth-teller, even though Warder technically had promised nothing. And it helped Pabst sell Warder, the judge, the jury and his own defense attorney a whopper.
The allegations that Dallas prosecutors have often refused to disclose "non-deals" and other exculpatory evidence get strong reactions, but the responses can be put into two camps: former prosecutors who say it was rare, and defense attorneys who say it happened all the time.
"Sending an innocent man to prison is a prosecutor's worst nightmare," says a former Dallas attorney who now works as a prosecutor in another county. "The code of ethics for prosecutors says their job is to see that justice is done. But in some cases, they'll tell themselves when they go to bed at night, 'He may not be guilty of this, but he's guilty of something.'"
Warder maintains there was no deal and that she did, in fact, disclose all exculpatory evidence, but her own paperwork tells another story. Faced with a heinous crime and two scumbags, did Warder make a deal with the wrong devil?
After taking the bench in a Dallas family violence court in 1999, state District Judge David Finn says he was surprised to discover young prosecutors withholding evidence from the defense.
Finn started his legal career in 1992 as a prosecutor in Tarrant County and then worked from 1995 to 1997 as a federal prosecutor in Dallas. Both offices had an "open file" policy; Finn says prosecutors there understood that withholding evidence was a firing offense. The attitude was "we play hard, we play to win, but we're not going to cheat," he says.
Since Henry Wade's era, the Dallas District Attorney's Office had a closed file policy, which continued under Bill Hill, who became district attorney in January 1999.
Defense attorneys complain that some prosecutors made it very difficult for them to get anything, even police reports, witness statements, the results of forensic tests and criminal histories of witnesses. Finn says the practice was so widespread he instituted a policy of asking prosecutors before seating a jury if there was any evidence that needed to be disclosed.
When Finn asked the question of two young female prosecutors before a domestic abuse case, they assured him there was none and announced they were ready for trial even though they had been unable to locate the victim in the case; the wife had moved out of state. They presented police officers as witnesses who repeated what the accuser had told them and then rested their case.
Then the defense brought in its surprise witness: the out-of-state wife, who told the judge that not only had she told prosecutors she had made up the accusations against her husband, she had signed an affidavit of non-prosecution.
Neither piece of information had been turned over to the defense, the prosecutors told Finn, because they thought the victim was lying.
"Their thinking was they didn't believe her, so it wasn't Brady material," Finn says. "That is not the legal standard. Brady has been on the books 45 years. They don't get to decide what they believe and don't believe. I'm thinking either I'm just nuts or coming from a completely different universe."
An experienced fellow judge recommended that Finn take his concerns to then-District Attorney Bill Hill. "I'm sure he would want to know," the judge told him.
According to Finn, Hill brushed him off. "This system has been in place for many years," Hill supposedly said. "Let's make a deal—you stick to judging and I'll stick to prosecuting." (Hill says this conversation didn't happen and isn't true. Finn left the district attorney's office in 2002 to run against Hill for district attorney and lost. "It sounds to me like David Finn is still smarting over the fact I beat him by over a two-to-one margin when he ran against me for district attorney.")
Finn claims that when he started defending clients, he noticed a different but, in his opinion, no less unethical tactic. "If the state stumbles across something explosive, they will 'bury the lead,'" Finn says. "Let's say your eyewitness says, 'I'm not sure if that guy did it or not. It may have been his cousin.' An honest person would disclose this. Instead, [some] prosecutors would say, 'Hey, I'll drop one of the three charges. No, I'll drop two.' What do you think most defense attorneys will do? Go yeah!"
The client would plead guilty and get a much-reduced sentence. The prosecutor would get a conviction without going to trial. And the defense attorney would look like a miracle worker.
Manipulation of witnesses was also a problem. Defending a young black ex-con on an aggravated robbery charge in 2002, Finn was able to show that Dallas police had tainted the victim's identification of the perpetrator by parading his client in front of the victim in handcuffs, then later putting him in a photo lineup.
The client insisted he was innocent; after investigating further, Finn believed he was telling the truth. But in a hearing on the issue, the judge refused to toss the ID, saying he'd let the jury decide.
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