ABA Journal



25-year-old tape’s revelation prompts prosecutors to offer mid-trial plea deal

Feb 19, 2013, 09:01 pm CST


Will the responsible police officer and prosecutor go to prison for willfully and deliberately concealing evidence and violating the Defendant's constitutional rights? They should . Without this "confession" there is probably little if any evidence linking the Defendant to the crime.
Note here that a case detective, knowing that the defendant asked for a lawyer, concealed the existence of the recorded conversation, and then testified under oath at the Defendant's trial that the Defendant voluntarily confessed to the crime without exerting his constitutional right to consult with an attorney.
Apparently, HO HUM..... Nobody seems to care.

By davebert on 2013 02 20, 4:00 pm CST

Maybe if the Defendant had gotten a good PR agent or changed his name to Lindsay Lohan or Mumia Abu-Jamal . . .

I agree. It is s crying shame that with too few exceptions no one seems to care about apparent prosecutorial fraud. One of the exceptions is the Innocence Project, The Keker and Van Nest firm in San Francisco has also overturned some outrageous injustices, most recently this week. They and firms like them are the bright lights of the profession.

For all we know, the defendant here is guilty, guilty, guilty. Whatever the case may be, he had a right to a fair trial fee of testilying.

By Been There on 2013 02 20, 8:50 pm CST

A court of inquiry is being held in Texas to determine if a prosecutor, who is now a judge, intentionally withheld evidence that sent a man to jail for 25 years.,0,3950542.story

By Texaslawyer on 2013 02 22, 3:27 pm CST

Seems like Brady material here and a motion for dismissal just might be granted. Usually the Brady motion only excludes the particular evidence but this might be a different matter. Being a capital case, the judge must keep in mind what other exculpatory evidence there might be that was not turned over.

By Augustin Ayala on 2013 02 22, 3:37 pm CST

I pray for the family of Officer Estevan who lost his life protecting and serving his community and the pain this apparent constitutional error now brings to them. Posted by mom of another murdered police officer who wanted the men who killed her son to have the absolute best defense counsel appointed and a fair trial in every way so as not to have to endure retrial after retrial.

By Phyllis Loya on 2013 02 22, 5:33 pm CST

This is an example of why our justice system is losing respect. the law is there to guide participants in the pursuit of truth. Our Constitution sets forth guarantees of certain rights to prevent abuse and to sustain a justice system that is as fair as possible. But when the Government does not follow those rules and the spirit in which they were conceived then the system is damaged and we all lose.

By Steve C on 2013 02 22, 6:46 pm CST

@#4 Augustin. Brady was my first thought too. But, to follow up on your point. What's the remedy when the information withheld is favorable to the defendant? Seems like the sanction should not be to exclude such evidence and reward the prosecution.

By Pierce on 2013 02 22, 6:55 pm CST

Kudos for the current prosecutor who understood how to do the right thing. Hopefully he'll have the opportunity to offer the former prosecutor the Brady benefits that the former refused to grant the original defendant.

By rosslaw on 2013 02 22, 8:12 pm CST

Don't accept a Plea Deal. Escobar's 5th Amendment Rights were violated, all questioning had to stop when he asked for his lawyer. His 6th Amendment Rights were violated as well, when no lawyer was provided and the police continued to question Escobar.

Larson v. Gorgia and Barry v. United States Mandates an Acquittall in the new trial on the Basis of the Newly Discovered Evidence, E.G. the tape, which disclosed the fact he asked for a lawyer. Based on this new evidence, had it been disclosed at the time of the first trial, the outcome would have been different.

The confession should be suppressed as the tainted fruit of the poisonous tree, the Weeks Doctrine.
Escobar walks.

By Angelo Dickens JD on 2013 02 22, 9:31 pm CST

Look at her picture in the Times article. I just can't imagine how anyone could have suspected she was older than 29.

By R on 2013 02 22, 10:23 pm CST

1. File a Motion to Surpress the Confession.
2. File a Motion to Dismiss on the Basis of Newly Discovered Evidence.

File a Law suit for:
Wrongful Incarceration
False Imprisonment
Intentional Infliction of Emotional Distress
Violation of Constitutional Rights
Violation of Civil Rights
Compensatory and Punitive Damages

By Angelo Dickens JD on 2013 02 23, 7:00 pm CST

Texaslawyer - thanks for the link. That's why, when I was prosecutor, I had a simple rule. Unless prohibited (victim information usually), EVERYTHING goes to the defense. Not sure how to classify the occurrence, but knowing that, a public defender asked me about some pictures in a case. I looked in the file, there were no pictures. I asked the public defender how he knew about the pictures. "Its in the report." I had charged on an oral statement (before probable cause affidavits which are very good idea) and had not yet read the report. Sure enough. I called the police chief for the jurisdiction about the pictures. He offered to get them one hour photo made (which should tell you how long this has been). I advised that the following week was fine. Pictures came in and no problems. However, the policy got the defense lawyer to ask for the pictures that I didn't even have in the file and saved this sort of thing from happening.

Angelo Dickens, JD - Agree, except add, if appropriate, file complaint against original prosecutor with disciplinary authority, if prosecutor still practicing.

By Redneck Lawyer on 2013 02 23, 7:55 pm CST

I am helping a young man set up by a rogue police officer who turned over false evidence to prosecutors, who took his word for everything, as did public defenders, never examining the documents. I am helping him because I do legal research but I am not a lawyer. Between us we tried more than 125 lawyers, none of whom would take a case pro bono--and it is winnable. His Constitutional rights were violated numerous times, and it is obvious (if anyone peruses the documents), and he is absolutely innocent. But finally caved, after three years, and plead guilty.

This case clearly demonstrates how easily the system railroads innocent young people who do not know their rights, who cannot afford a good defense lawyer, and it implies far larger numbers of innocent people similarly situated who languish in prison for want of someone competent to help them.

By Gloria Wolk on 2013 02 24, 7:45 pm CST

While roque prosecutors violate the constitutional rights of criminal defendants, rather than call for disciplinary action and overhaul of a corrupt criminal justice system, the ABA will continue to waste time and money on fluff pieces about legal rebels and the woes of big law. Oh and censoring comments critical of the ABA.

By Why-I-Hate-the-ABA on 2013 02 27, 6:29 pm CST

I do not think the ABA carries the major blame. First, the Dept. of Justice which allows US attorneys and AUSAs to carry on with immunity--those in the Ted Stevens case are one example, and the chief prosecutor in the Aisenberg's baby kidnapping case, and so on ad nauseum. They may get shifted to another city or state, but no penalty, no loss of benefits or income. (Our tax dollars continue to pay them to harm the public.) The DOJ sets the tone for how states react, when prosecutors obstruct justice.

Then there are the local bar associations which rarely take seriously complaints from the public and usually, if they do investigate, limit the penalty to a public reprimand.

And then there is the media. Justice Sotomayor scolded a prosecutor for his racism, but did not name him. The media could easily learn his name, but chose not to name him. Is that balanced reporting? Is that keeping the public informed?

Wouldn't you want to know who this is, so that if a friend or relative gets in his cross-hairs, you are warned? (Of course there will be little you can do about it, since he is so well protected.)

By Gloria Wolk on 2013 02 27, 8:09 pm CST

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