A former Harris County prosecutor received a rare rebuke from the Texas State Bar for failing to tell defense attorneys or jurors that she gave deals to jail informants in exchange for testimony that helped secure a conviction against a suspected serial killer in a capital murder case in 2010.
The former prosecutor, Elizabeth Exley, received a 90-day probated suspension of her license — set to run from Nov. 1 through Jan. 29 — after striking a deal on Oct. 24 with the Texas Bar’s Commission for Lawyer Discipline.
In an email, Exley said that while a court found she failed to properly communicate with defense attorneys during the trial, the defendant in the case received a fair trial, and noted that his appeal was denied.
“I regret I did not better document my communication with the defense 10 years ago, and am taking responsibility for that failure,” she wrote. “I’m just thankful that a serial killer is remaining in prison so the families of those women don’t have to relive that trauma.”
The sanction is noteworthy because prosecutors accused of misconduct rarely face punishment, said Elsa Alcala, a former judge who retired in 2018 from the Texas Court of Criminal Appeals.
“One of the gripes in the defense community is prosecutors do this all the time, and they never get any real punishment,” she said. “For lawyers, we live or die by our reputation. This makes it publicly known that she failed to disclose evidence to defense counsel.”
In any given year, there are 2,800 to 3,000 district and county attorneys across Texas, according to the Texas District & County Attorneys Association. Eleven prosecutors across the state have received sanctions since 2013, said Claire Reynolds, with the state bar’s Office of the Chief Disciplinary Counsel. The state bar issued 414 sanctions to lawyers in 2018, Reynolds said.
On HoustonChronicle.com: Attorney alleges prosecutorial misconduct led to wrongful murder conviction
While courthouse veterans noted the punishment was unusual, some criticized the sanction as a toothless measure that sends a message to other prosecutors that they can act with impunity.
“It tells prosecutors you can do anything you want to do to get a conviction and the bar is going to turn a blind eye,” said Randy Schaffer, who represents defendant Edward George McGregor in the murder case and filed the original complaint against Shipley Exley in 2016.
The case dates back to the April 1990 murder of Kim Wildman, in Fort Bend County. In 2006, police arrested McGregor, now 46, on suspicion of murdering Wildman. McGregor and Wildman lived on the same street. He was not initially the prime suspect in the case, but DNA evidence ultimately connected McGregor to the scene, as well as to the alleged murder of Nina Barnum, a Harris County woman. In 2006, police linked him to two additional murders as well.
Exley, who was the prosecutor on the Harris County case, traveled to Fort Bend County as a special prosecutor to try the Wildman case in 2010, and used testimony from jailhouse inmates to bolster DNA evidence to win a capital murder conviction against McGregor. The witnesses testified they overheard McGregor confess to the killings. He received a life sentence.
But Exley failed to disclose that she offered the witnesses help with their cases in order to help get them to testify, according to court records. Two of the witnesses received favorable treatment in exchange for their testimony, the documents show.
John Brannon, the prosecutor who handled the case for the state bar’s Office of the Chief Disciplinary Counsel, declined to comment. Reynolds declined to discuss the specifics of Exley’s sanction, citing attorney-client confidentiality.
“In general, the decision to enter into an agreed judgment vs. going to trial can be based on a lot of things, such as the relative strengths and weaknesses of the case law, the credibility of witnesses, and the likely outcome at trial,” Reynolds wrote in an email.
On HoustonChronicle.com: New trial sought in capital murder case
Besides the probated suspension, Exley was ordered to pay $1,265 in attorney’s fees and court costs, and the suspension will be published as a matter of public record.
Court records show she denied making promises in exchange for testimony.
“It is not my habit to promise a witness or complainant any particular outcome on a pending case,” Exley wrote in an April 2016 affidavit filed in response to Schaffer’s complaint. “In fact it is my habit to tell them that I cannot promise them anything regarding the disposition of a pending case, as I have no guarantee what a judge or jury will do after all the admissible evidence is presented.”
Fort Bend County Judge James Shoemake ultimately upheld Schaffer’s complaint in 2016, recommending a new trial for McGregor. The Court of Criminal Appeals denied the recommendation, arguing that false testimony was immaterial and a jury would have convicted McGregor had the witnesses told the truth, that they’d received benefits for their testimony.
Schaffer plans to petition the Supreme Court to review McGregor’s case in the next month.
Exley left the Harris County District Attorney’s Office in 2016, after then-incoming District Attorney Kim Ogg elected not to renew Exley’s contract. She now works in private practice, representing accused murderers and other suspects, including Buddy Martin, a defendant charged with aggravated sexual assault of a child.
In August, Exley filed a motion asking a judge to order prosecutors to produce evidence relevant to the case.
The motion sought “any evidence or information within the knowledge or possession of the state of Texas … which is favorable to the defendant on the issue of guilt or innocence, or which might tend to mitigate punishment should the defendant be convicted.”
Published at Fri, 08 Nov 2019 13:27:00 +0000