Saturday, August 29, 2015

A Judge's Mistake

Anthony Graves was wrongfully convicted and sentenced to die. This did not happen in a vacuum. Charles Sebesta was not the only domino that had to fall for the worst nightmare in the criminal justice system to occur. More was needed.

When I read Pamela Colloff's Texas Monthly August, 2015 column, Time and Punishment, reciting the story of Sebesta's disbarment proceedings last summer, one sentence leapt off the page:
Graves, who was allowed to attend the entire proceeding, calmly listened and took notes. But when his trial judge, Harold Towslee, testified that he had received a fair trial, Graves quietly stepped outside. 
I am not sure how Judge Towslee's testimony at the disbarment proceedings reached the public domain. The disbarment proceeding was closed door. Regardless, I was disappointed Judge Towslee believed Graves received a fair trial. I had read the disciplinary panel's findings of facts and conclusion of law before reading Colloff's TM story. The complete findings and conclusions can be read here. Pertinent to this post is the following:
Graves presented an alibi defense at trial. The defense centered around witnesses that put him in Brenham, Texas on the night of the murders. Yolanda Mathis ("Mathis") was Graves' girlfriend and had previously testified at grand jury that she had been with Graves during the critical time period on the night of the murders. After being sworn in and placed under the Rule, but before the defense called her to the stand at trial, and while Mathis was not in the courtroom, Sebesta stated in open court that: 
Mr. Sebesta: Judge, when they call Yolanda Mathis we would ask, outside the presence of the jury that the Court warn her of her rights. She is a suspect in these murders and it's quite possible, at some point in the future, she might be indicted. I don't know. And I feel outside the presence of the jury that it would be proper to warn her of her rights.
Sebesta had no evidence or information tending to show Yolanda Mathis was a suspect or had any involvement in the murders. Whether the result was intended or not, Yolanda Mathis refused to appear as a witness for the defense after this false statement was uttered to the court. Sebesta's statement to the court was false and in violation of Rule 3.03(a)(l). 
I want to emphasis the last paragraph of the panel finding on this issue: "Sebesta had no evidence or information tending to show [the witness] was a suspect or had any involvement in the murders." Digest that finding for a  moment. Nothing. Zilch. Zero. No evidence, not even rumor tending to show her involvement in the murders.

Judge Towslee's responsibility was to require something other than Sebesta's say-so to support this gambit to intimidate Yolanda Mathis: "She is a suspect in these murders and it's quite possible, at some point in the future, she might be indicted." Okay, the panel did not find Sebesta intended to intimidate Mathis into not testifying, but Jeez, what else could it have been? Does anything else makes sense? Sebesta received an obvious tactical trial advantage if Mathis did not testify. Given this, why was he not made to proffer facts to support what he claimed? The claim was found to be specious by the panel. The facts did not change. The evidence found by the panel implicating Mathis was just as specious when Sebesta originally uttered the words.

The disbarment panel's finding, admittedly, does not rule out the possibility that Judge Towslee actually required a proffer of evidence on the issue. Given their finding, however, it seems unlikely. If there was a proffer, and Sebesta "warning" to the witness was allowed to stand without correction, then the damage caused was even worse.

A judge's most effective tool is their authority in the courtroom. This authority should, partly, act as a check on the exercise of kind of raw, unbridled prosecutorial power Sebesta's statement puts on display. I know Judge Towslee. He is a good man. I have tried two cases to juries in front of him, one civil, another criminal. He is retired and taken senior judge status. In fact, but for a state motion for continuance, I would have tried a DWI case in front of him a couple of weeks ago in Brazos County.

As much as I like Judge Towslee, Charles Sebesta's pell-mell prosecution of Graves did not happen in isolation. It was wrong then, and Judge Towslee should not continue to compound fallacy by not recognizing the mistakes. He should acknowledge this incident illustrates at least one example of why Anthony Graves did not receive a fair trial.

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