Anatomy of a Wrongful Conviction – Day Seven (Update)

Let us say that you have stolen a valuable piece of art. Yes, yes, I know: you are a good person, you volunteer at the soup kitchen, go to church, pay your taxes. Quiet for a minute – I’m trying to make a point. Let’s pretend that while on the way to church or the soup kitchen, a Christie’s truck goes a little too fast over a speed bump and a crate pops out the back. You take the crate home, open it up, and – holy crap – you’ve got a Pieter Brueghel II original. Your thoughts about quickly returning this to its rightful owner fray a bit once you check the internet and discover that it’s estimated to be worth about two millions bucks. That’s a lot of soup for Jesus, you tell yourself, or whatever justification seems sufficiently rational to convince yourself to keep the thing. Over the next few weeks, you carefully trawl ever deeper into the waters of the dark art web. Everyone’s talking about the Brueghel. Everyone wants it. But there’s one guy who wants it more than anyone else, to the tune of five million bucks. You do your research and find out that this guy, this Mr. ArtLover261, is a notorious figure. He’s known to be intelligent, inveterately greedy, and unashamedly ruthless. But he’s also loaded. You can’t help yourself. He answers your encrypted email almost at once.

Artlover261 agrees to give you the money in non-sequentially numbered, unmarked $100 bills. He also wants to meet you in a deserted parking lot behind the horse track for the exchange, and insists that you come alone. Well, just because you are the treasurer of your HOA doesn’t mean that you haven’t watched an episode or ten of The Wire. You suspect that if you showed as planned, Artlover would just shoot you in the face and leave with both the painting and the cash, which would, I think it’s fair to say, not be the most advantageous of outcomes for you. You instead propose the following arrangement: you will hide the Brueghel in a dumpster near the airport, while he simultaneously hides the cash in a dumpster near the football stadium, a good fifty miles distant. Then you will both go to a set of very specific pay phones and exchange directions on how to find what the other desires. You will therefore both have the incentive to move quickly to obtain what interests each of you the most – but not the time to grab both. You sit back and toast your genius. Clearly, Moriarty had nothing on you.

So, there you go, newly minted criminal mastermind that you are, skulking about the shadows of the airport, when a troubling thought suddenly pops into view. Why not just keep the painting? ArtLover26l won’t have any way of knowing that you screwed him until he gets to the airport, by which time you would already be picking up the money. You could simply disappear with both, and never have to hear about that buffoon again.

Just as suddenly, an even worse thought nudges its way forward: Artlover must be thinking the exact same thing! He’s smart and greedy and ruthless, remember, plus he has just as much incentive as you do to betray the other, and you would be just as incapable of retaliation as he would. It’s a real dilemma.

I meant that literally: the above is just one of the sorts of dilemmas that game theory tries to schematize. You effectively have two choices: to cooperate (stick to the plan, be honest) or defect (screw your opponent), but how you decide depends largely on how you think your opponent is going to act. There are four solutions: in the first, you both cooperate, and both walk away with what you want the most. Second, you cooperate and Artlover defects, meaning you get bupkis and your opponent gets everything. Third, you defect and Artlover cooperates, meaning you get everything and he gets nada. Or, fourth, you both cheat, and end up walking away with exactly what you had in the beginning.

I studied aspects of game theory many years ago, long before I came to death row. I’ve written about the “prisoner’s dilemma” on numerous occasions, the most well-known facet of game theory. Dilemmas like this are often studied in college ethics classes, something I have come to believe is a major mistake. I came to this field while studying John Von Neumann’s minimax theorem in a computer programming class. Specifically, we were programming a war simulator. Minimax games are those involving two players in which there is always a winner and loser. Von Neumann proved that there is always an optimal way to play these games, if one could but discover it. Most minimax games are also zero-sum, meaning that the total payoff of the games are fixed: no one ever wins a dollar at the poker table unless someone has lost it first. Whether money is involved or not, each player has a fixed set of preferred outcomes that he values over others. When you place these preferences on a numerical scale, they are called “utility.” These can be thought of as “points” that you accrue; the central point of studying game theory is to learn to maximize one’s utility quotient. But that’s not what ethics is about, not at all. Ethics is about doing what one feels is right regardless (and in many cases in spite) of what happens after one makes a choice. Studying game theory as an exercise in ethics automatically structures the outcome to benefit whoever can manage to be the most ruthless; it inherently reduces values to utility. If what you care about is acting morally, the only way to win a zero-sum game is not to play. You don’t steal the painting. You don’t email Artlover261. You don’t make millions of dollars. You call the police, and then go back to ladling out soup.

If you want to know why our criminal justice system is so markedly broken when compared to many others worldwide, this is a pretty good place to start: we view justice as a binary, zero-sum game. Instead of seeing it as a field in which one’s moral system can be worked out in practical terms, instead of carefully weighing all of the variables of a crime in order to seek that rare middle path where everyone, both victim and perpetrator, might “win” or be healed (the goal of restorative justice movements), the entire exercise in America is reduced to utility: who wins and who loses, and to what degree. I don’t think I’m saying anything outrageous when I sneer that “justice” in America has very little to do with right or wrong; today, it’s more about egos, the raw application of power and money, and who has the best tricks stuffed up their incredibly expensive sleeves. I used to be really naive about these things. I truly believed that wrongs could be righted with the proper application of case law, that the scales would fall from the eyes of the mighty and the many, that realization would dawn and chains would fall away. I wanted to view the law the way Wallace Stevens viewed poetry, as an “imagination of the normal.” But then I woke up on the morning after yet another execution of someone I knew got royally screwed by the courts and his own attorney, and I had to face the cold gale of realizing that the world I understood is not the world I actually lived in. Within the last year or so, I finally managed to kill the last wretched remnants of the romantic flights of fancy that once caused me to put my faith in human systems of justice. We’re all positivists now, I guess, and I’ve finally seen the dark.

It actually makes things easier, seeing the law this way. In May of 2014, I reported extensively on the case of Jeff Prible. It took me a long time to write that series, not because the record was so extensive (though it was), but because I was deeply worried about somehow screwing up the case of someone that I had come to see was factually innocent of the crime that sent him to death row. I was still laboring under the idea that “justice” was somehow sacred, real in the Platonic sense, that I had to get everything perfect or else my mistake might somehow taint his quest. What rot. My view of his case has shifted, I think, to how an actual attorney might view it – not a matter of right vs. wrong or fair vs. unfair, but simply: who has the best strategy for gutting their opponent? Whose ego was too large to actually run their bluff? Whose train of lies ran out of steam before it could reach the station? It’s so much easier to just slit your opponent’s throat than to actually argue over ethics. What a fool I’ve been.

In my original series, I wrote that despite all of the evidence I had attempted to present to you, smart money would probably still bet on the state eventually executing Jeff. I’m going to switch horses midstream, so to speak. Why? Because justice is irrelevant. Jeff simply has smarter attorneys now. Kelly Siegler turned out to be an even bigger idiot than I had initially believed, a fool with too many enemies capable of recognizing the personal benefits of feeding on her carcass. Jeff‘s not going to walk because it’s right. He’s going to walk because he finally managed to bring a bigger stick to the fight. He would disagree with me. He still deeply believes in God and right and justice, and that Truth has come to save him. As long as he walks, I don’t even care that much anymore about which of us is correct. Too much exposure to the cores of the zero-sum reactor, I guess.

At any rate, there really isn‘t any way to easily summarize my original series. This case is monstrously complex, a cynical, twisted labyrinth built by one of America’s most famously zero-sum prosecutors. Several of you seemed to think my treatment of the case was my initial foray into the realm of low-budget crime thrillers. Unfortunately, all of this is very real: the dead really are dead, the convicted really is awaiting execution. In order to truly understand the ins and outs of the following, you therefore really need to go back and reread the prior articles, especially parts 4-6.

The basic facts are these: sometime during the early hours of 24 April 1999, someone murdered Esteban Herrera and his fiancée, Nilda Tirado by gunshot. This person then set fire to the house, killing three little girls who were sleeping in their bedrooms. Jeff was a friend of the victims, and would later admit to a burgeoning intimate relationship with Nilda. During the subsequent investigation, it would be discovered that Jeff had robbed a series of banks in order to obtain the seed funding for a nightclub, and he would be subsequently arrested and sentenced to federal prison. While there, the notorious ADA Kelly Siegler would take an interest in the cold case, and thereafter artfully engineer a network of prison snitches tasked with procuring an admission of guilt for the murders – whether or not this admission was genuine or not. Jeff was convicted based on roughly three lines of attack: a report by a forensic expert showing Jeff’s sperm in Nilda’s mouth, the testimony from a fellow inmate at FCI Beaumont who claimed to have heard Jeff’s confession, and the reputational trust that jurors naturally place in prosecutors.

We all live in the factually-challenged world that shows like CSI created, so it therefore seems appropriate to begin my update on the DNA issue. That I did not dwell more on this subject in my original series is something that I came to regret (Day 4), but I was attempting to keep a very tangled story streamlined, and delving into the science of DNA seemed a gratuitous detour. I intend to rectify that mistake now. When Jeff was initially investigated by the police, he admitted to having consensual oral sex with Nilda the evening preceeding the murders. During opening arguments at trial, however, Kelly Siegler announced that her expert – a William Watson – would testify that, “when semen is in somebody‘s mouth…it goes away in minutes. It goes away with a small swallow. That’s what the evidence is about in this case.” She claimed that this indicated that the oral sex took place proximate to the murders, even stating at one point that Jeff ejaculated as he shot Hilda. Here are Siegler’s actual words from the court record, if you are interested:

Now, we all know that this is not true, that DNA residue can be found on many surfaces for far longer than minutes, but Siegler needed to insist upon her timetable and theory because Jeff actually had a very convincing alibi witness that placed him miles away at his parents’ house at the time of the murders. Siegler was betting that junk science would trump the claims of a human witness, and this was a bet that she clearly won. It’s worth wondering why this works so often. On this point, I think we, the public, must bear the burden of the guilt. We are a people that loves the idea of science while simultaneously knowing almost nothing about it. (Disagree? How does your cell phone work? How about a basic battery? What’s the seventh planet from the Sun? I rest my case.) Within such a deficit of actual knowledge, “science” is just another totem to be waved at the masses, a promise of proof devoid entirely of content. Propaganda , not actual power, but even fake power   is usually more convincing than nothing. As I said in my original piece, Siegler played the tune here, but she didn’t force anyone to dance. We did that on our own.  We do that on our own.

The first problem with Siegler’s DNA theory is that Watson didn’t actually testify that Jeff had to be at the crime scene immediately prior to the murders. What he said was that he could estimate the perimortem interval between sex and death at around one hour. He based this opinion not on any professional or academic literature, but on his experience in “testing rape kits.” He had no PhD and no actual experience in estimating such intervals, which speaks to a problem with how our courts relate scientific data to jurors: in court, interpretations are often presented as immutable fact, and this is seldom made clear to anyone at trial. As I reported in 2014, Watson was Siegler’s hired gun expert, a reliable provider of whatever “science” Siegler required to secure convictions. Jeff’s trial attorneys failed monstrously in not having a DNA expert of their own; I speculated previously that defense counsel had forgone this because they expected Watson to testify to widely accepted norms, only to be broadsided by these unscientific claims. They should have demanded what is called a Daubert hearing on Watson’s testimony, but they failed to ask for this, somewhat inexplicably. I’m trying very hard these days not to Monday-morning-quarterback decisions made by trial attorneys, but I think it’s very telling that an inmate in a solitary cell who has never spent one day at law school is capable of fashioning a better trial strategy than what these fools came up with.

At any rate, if Jeff’s defense team had acquired their own expert, they would have found out that Watson’s entire methodology was unsupported by any actual science, as confirmed by the affidavit provided by Dr. Elizabeth Johnson. Unlike Watson, Johnson has a PhD in immunology, plus four years of postdoc work at MD Anderson. She then established the DNA lab within the Harris County Medical Examiners Office, and became director thereafter. The entire affidavit is worth reading, though I want to highlight two points in particular:

In this paragraph, Dr. Johnson basically states that there is no way for anyone to say how much sperm exists in a sample without first compiling an account of the spermatozoa present. She then torpedoes Watson‘s calculation and proves that the actual sperm present was more in line with a sexual encounter many hours before the murders, not minutes.

In this point, Johnson blasts Watson for not having read any of the academic literature on the precise point Watson was testifying to – the very point that would precipitate the execution of another human being. One would think that on such an important point the man would have done his due diligence and surveyed for at least a few minutes the accepted science on the matter, but one would be wrong. I think this attitude is very representative of the ethos that still dominates the offices of DAs in the South. Before you object and claim that, I don’t know, maybe this literature isn’t easy to locate, just know that I was able to find reams of it from inside my solitary confinement cell. In fact, here’s a perfect paper to read on the matter. The title is pretty self-explanatory.

Given the fact that A) Watson’s actual testimony didn’t sync up with what Siegler claimed he was going to say and B) that his “expert” testimony has been totally debunked, Jeff’s current attorneys contacted Watson on 31 March 2016. When asked point blank, Watson stated that Siegler’s representation of his testimony during opening and closing arguments were not accurate, and that he did not hold the opinion that his analysis implied that Jeff had sex with Nilda within minutes of her death. He indirectly stated that he would not have said anything along these lines before trial, though he refused to sign an affidavit condemning Siegler‘s remarks, ostensibly because he was “not present” during opening and closing statements. Fortunately for Jeff, Watson’s statements regarding Siegler’s misuse of his testimony and conclusions is now on the record, and they will be available for Jeff’s counsel to use against Siegler during depositions which are to take place over the next few months. It may very well become necessary for the court to depose Watson, though for the moment the judge seems to feel his trial testimony falls so squarely under the rubric of “junk science” as to be clear error on it’s face. I would be very surprised if Jeff isn’t given a new trial on this issue alone. As I noted in 2014, this is not the first time that Watson will have been discredited in open court, and it is my hope that he will finally have his credentials yanked.

Why, you might ask, would Watson attempt to cover for Siegler for all these years? He has known for more than 15 years that a man was sent to death row in part due to testimony that he had to have known was problematic. I think principally he is trying to cover himself, because once a forensic expert is shown to have repeatedly provided junk science testimony, he ceases to very quickly to be a forensic expert. For his opinion, Watson used to charge the court $3000 for a very short appearance, not bad work if you can get it. Beyond that, I’m not certain that all of you appreciate just how scary Kelly Siegler was, or the sort of power she used to wield in Texas. I think this has diminished somewhat, now that she has chosen to dedicate her time to being the star of TNT’s “Cold Justice,” but there was a time in the not-so-distant past when she was one of the most powerful figures in the criminal justice sphere in the state. This is a woman who sent twenty men to death row, most of whom with little to no actual evidence of culpability. If you knew she was both willing and capable of such things, I’m not so sure that fear isn’t the appropriate response.

To be fair to Siegler, Watson and his DNA delusions were never meant to be the centerpiece of her prosecution of Jeff. She simply used Watson to give her narrative the patina of certitude that science often engenders in the general public. Watson was merely the frosting; the cake was Michael Beckcom, an individual I reported extensively upon here. I cannot stress how convoluted Siegler’s web is in this case; by simplifying, I feel I’m almost doing a disservice to her craft. In the interests of space, however, these are the basic facts of the snitch network she developed: in 1999, Siegler used an inmate named Jesse Moreno to convict Jason Morales to a life sentence. In the federal system, assisting the prosecution can produce what is called a Rule 35 time reduction, meaning that Moreno was given a time cut and had the state of Texas drop a first degree felony case of aggravated robbery in exchange for his testimony. On 4 April 2001, he called Siegler again, offering to testify against Hermilo Herrero in the unsolved murder of Alberto Guajardo. You can read the transcript of this meeting here.

There are several things to note of importance in this transcript. The first is that when Herrero supposedly admitted to killing Guajardo, a man named Nathan Foreman was present (see page 14); when Beckcom testified on the stand that Jeff had confessed to the murders of Steve and Nilda, he allegedly also did so in the presence of Beckcom and Nathan Foreman, a remarkable coincidence indeed. Second, on pages 19 and 20, Siegler ostensibly seems to be clarifying some identifying facts on Nathan Foreman. “Is he from Houston?” she asks. “White guy or black guy?” That all seems perfectly normal, save for the fact that Siegler already knew who he was: she’d already utilized him as a snitch witness in the past. For instance, Nathan and Bobby Ray Foreman were prosecution witnesses in the case against Carl Henry Evans in 1993. Bobby Ray was also an informant in the murder case of Porter Lee Bush – a case handled by Siegler. As soon as Moreno mentioned Foreman’s name, Siegler realized that she had the perfect snitch in place to take a run at Jeff.

Moreno’s transcript is more troubling than that, however. According to him, Herrero confessed to him and Foreman at the beginning of December 1999 (page 14). This is slightly problematic because Foreman didn’t even arrive at FCI Beaumont until 28 February 2000, a fact that Siegler would have been keenly aware of. Worse, the details of Moreno’s narrative do not sync up with the actual forensics of the Guajardo killing. In his story, Herrero supposedly meets Guajardo at a bar and gets him stone drunk. They then decided to leave, and Herrero somehow slits his throat from the backseat of the car. He then rolled Guajardo up in a carpet and repeatedly slammed a hammer into his head. That’s all suitably dramatic, to be sure, save that Guajardo had no alcohol in his system at the time of his death and the blows to his head were made by feet, not something as dense as a hammer. Siegler had the forensic report on Guarjardo, so of course she would have known all of this; instead of seeing right through this opportunistic attempt at a time reduction, she lied to the jury about the extent of Guarjardo’s injuries during opening and closing arguments. When Moreno sat on the stand at trial and testified to things that she knew were untrue, she didn’t bat an eyelash. Siegler didn’t end up using Foreman to convict Herrero, interestingly, because she deemed his testimony “repetitious” to that of Moreno. In reality, she was already planning to use Foreman against Jeff, and didn’t want Foreman’s name popping up twice on her witness list. None of this stopped her from requesting a Rule 35 sentence reduction from Assistant US Attorney Tracy Batson for Foreman, which you can read here. You will notice that she also invented a threat supposedly directed against Foreman from Herrero. This was a brilliant move on her part, one that shows just how well she understood internal BOP protocol. When the officials at FCI Beaumont placed Herrero in solitary confinement for the remainder of his fed time, this allowed Siegler to A) convict Jeff with the same network of snitches without letting the rumor mill within the prison alert Herrero to what was going on, and B) to then give the BOP sufficient cause to break up her snitch network by sending each of them to different prisons. Some went east to Louisiana, some north to Oklahoma, some west to California. By the time Jeff reached death row, he only had the slightest concept of what had happened to him, and virtually no way to prove any of it or even to locate the people he knew from Beaumont. They had, quite simply, fallen into Siegler’s black hole. Herrero would have understood exactly what was going on had he seen a news report of Jeff‘s trial, save that he was in solitary and had no access to local media. It would take him several months to connect the dots, but by this time, it was far too late to help Jeff.

Two days after Siegler’s original meeting with Moreno, Jeff was indicted for the murders of Steve and Nilda using a ballistics report that was later shown to contain falsified information. That same day, she had Foreman removed from solitary confinement and placed in the medium security section of the prison. His cellie was Michael Beckcom. Long before Jeff was moved from the Low to the Medium, a group of snitches consisting of Moreno, Beckcom, Carl Walker, Rafael Dominguez, and Mark Martinez were informed of his imminent arrival by Siegler. We know she supplied this group with a huge array of details about the murders, information that only the killer or the police could even know, because several members of the network have since come forward to admit their part in the plot (Day 5), and have detailed this extensive communication between snitches and state.

According to Beckcom, Jeff confessed to him and Foreman on 24 November 2001- three months after Foreman had been transferred to Harris County on a bogus federal writ in order to testify in front of the Grand Jury that indicted Prible. (The transcripts from this testimony have since been illegally destroyed.  No one in the Harris County District Attorney’s Office can explain what happened to them.  All such records are required by law to be preserved until the cases they attach to are finalized, which in this case would mean Jeff’s execution.  It is extremely rare for a federal judge to order these sealed transcripts to be produced, which is what happened in this case.  It seems clear that Siegler asked one of her old friends still working for the County to destroy these once it started to become clear to her that the extent of her malfeasance in this case had become known.) Apparently no one noticed this remarkable violation of the law of causation. Even stranger: although Beckcom did not write to Siegler until 10 December 2001 with elaborate details of Jeff’s confession, the state had already become mysteriously convinced of his guilt because on 29 November 2001 they filed an interstate detainer to have him transferred out of FCI Beaumont. That’s a hell of a magic crystal ball, no?

At trial Siegler again decided not to use Foreman’s testimony, instead favoring Beckcom’s polished presentation. Although Beckcom has since made coded comments to Jeff’s investigator about Siegler and his role in the snitch in the ring (Day 5), Foreman maintained his silence and repeatedly refused to meet with Jeff’s attorneys. He’s a crafty one, and understood better than anyone how his familiarity with the details of the Herrero and Prible prosecutions gave him a huge ax he could hang over the DA’s office. This knowledge finally began to profit him after he was arrested again in May of 2013. On Christmas Eve of the prior December, Foreman and four accomplices kidnapped two men from a body shop in the 2500 block of Central Parkway in northwest Houston. The victims were beaten, had their hands bound with zip-ties, and were then dragged to a back room where they were tortured with a clothing iron. Foreman then had one of his associates pour gasoline on the victims, and taunt them with lit cigarette lighters. Eventually the pair were loaded into a van. Fearing that they were going to be killed, the two later escaped. Both victims were shot in this attempt.

Despite all of this, Foreman somehow managed to convince the ADA to release him on a $60,000 bond. I suspect that most of you know this, but ex-cons that commit violent felonies using weapons do not get bail in Texas, especially not the sort of bail that is normally commensurate with a much less serious violation of the law. Moreover, despite this case being pretty open-and-shut, Foreman was able to obtain set-offs for his trial – not once, not twice, but over a dozen times. How? I’m speculating here, but I suspect that he had a very frank conversation with the prosecutor assigned to his case about Siegler’s past conduct. At the time of Foreman’s arrest in 2013, it wasn’t at all apparent that Jeff was going to be able to convince his federal judge to grant him an evidentiary hearing. It was still far more likely at that point that this entire affair would result in Jeff’s rapid execution. I think that the Harris County District Attorney’s office promoted these set-offs, expecting Jeff’s case to be dealt with in the normal pro-forma manner, so that they could afterwards offer Foreman a plea bargain that would ensure his continued silence. When Jeff’s case stalled out in the federal judiciary, the prosecution began to have a progressively more difficult time obtaining delays from the trial judge. Eventually they had no choice but to proceed to trial, where Foreman got the sort of sentence that will see him spend most of the rest of his days in the TDCJ, though not, I note, all of them.

There’s nothing like a snitch scorned. Facing the realization that his erstwhile protectors no longer had his back, Foreman suddenly became more willing to speak with Jeff’s attorneys. On 21 December 2015, James Rytting arranged a deposition with Foreman at the Harris County jail; he had already cleared this with county officials and was acting under a federal court order. Despite this, Foreman was “accidentally” shipped to the West Garza Unit in Beeville, Texas, before the deposition could take place. A new deposition schedule was arranged. Before Rytting could make it to south Texas, however, Foreman was again moved, this time to the Darrington Unit in Rosharhon. A deposition schedule was set for a third time, but – you guessed it – Foreman was yet again transferred to the Byrd Unit in Huntsville. By this point, Rytting was getting aggravated by the state’s deranged three-card Monty routine, and took steps to have a “hold” order placed on Foreman. A new date for the deposition was set for Monday, 11 January 2016.

Texas wasn’t quite ready to surrender, however. The Friday before the deposition was to finally take place, the part of the TDCJ bureaucracy tasked with handling such matters (creatively and somewhat ironically titled “Access to Courts”) erroneously informed the Byrd Unit that the court reporter Rytting had hired for the deposition had an expired certificate, so her access was denied. This was, to use a highly technical term from the world of law, a steaming pile of bollocks: the reporter had recertified months before, a point the TDCJ would later concede, blaming the Texas Judicial Branch’s website for the error. The state clearly expected Rytting to reschedule the deposition, but he faked them out by actually showing up to the Byrd Unit with a digital recorder. You will probably not be surprised to learn that during this conversation, Foreman denied having been witness to any confession by Jeff. He confirmed that a group of inmates was attempting to set Jeff up, that Michael Beckcom was amongst them, and that Kelly Siegler was the ringleader of this entire circus. When shown the letter Beckcom sent to Siegler purporting to describe the circumstances of Jeff’s confession, Foreman denied the contents piece by piece. Just for good measure, he also torpedoed Siegler’s use of the snitch network in the Herrero case. You can see these affidavits here and here. Jeff’s federal judge recently authorized depositions for every last member of the snitch ring, meaning in the very near future this whole sorry cavalcade of scumbags is going to have to explain in minute detail how they attempted to reduce their sentences by sacrificing an innocent man on the alter of Siegler’s zero-sum god.

What does Siegler think of all of this? We’re about to find out, as the judge also ordered her to be deposed. We don’t have to assume that she is nervous about all of this, as she was kind enough to show her hand to all and sundry last year. Long before he finally acquiesced to signing an affidavit, Foreman instructed his attorney Alan Percely to handle communications with Jeff’s defense team. One of the attorneys handling the Hermilo Herrero case, Norm Silverman, was also present during these contacts. Silverman assigned his investigator Rudy Vargas to look into Siegler’s conduct, and Vargas somehow stumbled over one of Kelly Siegler’s trip-wires. Instead of acting, you know, sane, she attempted to save herself by threatening Vargas. This displays a mathematically inexpressible level of stupidity, because if you can count on anyone having a recording app on their phone, it’s a private investigator. You can read the the transcript of this conversation here. Need I point out that honest prosecutors don’t need to threaten other members of the legal community for having the temerity to look over their prior work? I hope not.

The last year hasn’t been all that rosy for our dear Kelly. She was sued twice over her role on TNT’s “Cold Justice,” for starters. In one case, Siegler managed to convince Paulding Country, Ohio authorities to arrest Steven Noffsinger for the 17 December 1981 murder of his ex-wife. They managed this despite the fact that Noffsinger had already been investigated in 1981 and no charges had been brought. Over the years, nearly all of the forensic evidence from the crime scene had been destroyed or lost, meaning Siegler and company had significantly less data with which to bring charges than the authorities had 35 years ago. How did she pull this off? I have no idea, save to remind you that pulling miraculous convictions out of her hat is what she does for a living. We do know that Siegler told the sheriff’s office that “the television production would not be published unless an indictment was filed.” Shortly thereafter a grand jury was convened and Noffsinger was arrested.

Things fell apart after that for the state. It turned out that there wasn’t any actual evidence against Noffsinger, and the jury returned a not- guilty verdict after a short trial. Noffsinger is suing Siegler, TNT, and the sheriff‘s department for the year he spent in jail, plus the emotional toll of having a national television production paint him as a killer. A careful review of the episode in question shows that Siegler completely omitted any and all facts that spoiled her narrative; this turned out to be most of the original forensic findings and the impressions of the initial investigators, not to mention the elimination of any mention of two legitimate suspects the police interviewed after the murder. One of these had actually failed a polygraph test at the time, though you never would have known about it if you were casually watching the television on Friday night.

These are mere disturbances in the carefully planned flight of her ego. The turbulence that is going to rip her wings off concerns the case of David Temple. Temple was convicted in 2007 for the 11 January 1999 murder of his wife Belinda. Siegler and fellow ADA Craig Goodhart were the prosecutors, and they crafted a highly circumstantial case designed to punch a seven minute hole in Temple’s alibi. This case began to fall apart on appeal, and Larry Gist, a visiting judge, was brought in from Beaumont to handle habeas proceedings. This judge, I should note, is highly respected in southeast Texas, and is by no means a bleeding-heart liberal: chair of the Judicial Advisory Council, he was a Rick Perry appointee to the board of the TDCJ. In a remarkable and vanishingly rare eruption of judicially responsible behavior, Temple was given a genuine hearing on his claims, an almost month-long affair that generated a 1319 page report that I had the fortune to be able to read in its entirety. Judge Gist released his ruling on 8 July 2015, which you can read here.

I have never read a judicial opinion quite like this before. After initially denying Temple’s ineffective Assistance of Counsel and Actual Innocence claims, Judge Gist proceeded to list 36 separate instances of prosecutorial misconduct, nearly all of which fall squarely on Siegler’s shoulders. Most alarmingly, Siegler stated outright that she believed she did not need to provide potentially exculpatory material to the defense if she “did not believe it was true.” When noting this, Judge Gist actually underlined this section and even used a bold font. I’ve never seen that before in a ruling, not once, in more than a decade of reading legal opinions. Houston attorney Paul Looney told the Chronicle that “if Kelly’s bizarre interpretation of that rule were ever to be the law, then all a prosecutor would ever have to do to keep any witness statement away from the defense is say, ‘Well, I didn’t believe it, so I didn’t give it to the defense.’ That’s never been the law, it would totally eliminate law, but she just boldly stated it – and the only thing I can figure is she’s trying to find some arguable basis to try to defend her law license from the ultimate scrutiny of the State Bar of Texas, which undoubtedly is going to happen over this case.” I was hoping that it would be Jeff’s case that cost Kelly her license. Alas, I suppose Jeff will just have to settle for having her sent to jail instead.

Through the lens of the Temple case, one can gain yet another view of Siegler’s obsessive tunnel vision: once she has you in her sights, she absolutely refuses to look elsewhere, no matter what the evidence actually indicates. There were other suspects in the murder of Belinda Temple. One of the Temples’ neighbors called the police, for instance, to report that it was her husband who had committed the murder. Somehow, inexplicably, Siegler never reported this to the defense. Temple’s attorneys attempted to show at trial that there was a group of local boys known to rob houses in the neighborhood for drug money; it became apparent, for instance, that several of these young men had been interviewed by detectives. They never learned, however, that the police had recovered a shotgun with a blank .00 buckshot shell still in the chamber – the exact sort of round that had killed Belinda Temple. Neither did the police ever inform them that this weapon was found wrapped in a blood-spotted towel, or that two of this alternate group of suspects had been overheard debating whether the placement of a pillow at the end of a shotgun barrel would muffle the blast of a discharge (it does). When Temple requested this information on 25 August 2005, the trial judge ordered the DAs office to turn over “any reports, documentation which contains tips, leads as to another person having committed this offense,” adding “that’s [all] Brady material.” Despite this, the state claimed that none of this information existed. Afterwards, any time Temple’s defense asked for records of any sort, the DA’s office refused to make copies for them. Instead, defense counsel had to copy by hand the portions of the prosecution file the state was willing to share – a total of several thousand pages.

Judge Gist would discover during the habeas proceedings that even after Siegler left the Harris County DA’s office in 2008, she influenced post-trial maneuvers by telling both the police and other prosecutors not to turn over any records that Temple might petition – a striking similarity to what has taken place in Jeff’s case. Even worse, it now appears that she sought to manipulate a witness that came forward after the trial to tell Temple’s defense team that he had overheard another man admit to the murder. This witness, a Daniel Glasscock, passed a polygraph test administered by investigators in the DA’s office. Once Siegler learned about this, she ordered a Sheriff’s deputy to contact Glasscock and another witness “before they could be contacted by the Special Prosecutor [in the habeas investigation].” The deputy did so, and immediately afterwards their stories became far friendlier to the state’s narrative. Judge Gist found that they had been so frightened by this contact by Siegler’s goons that their credibility as witnesses was “significantly impaired.” One instantly recalls Siegler‘s menacing phone call to Foreman’s investigator and cannot but wonder about the frequency with which she employed this tactic. Were any of her trials conducted honestly?

All of the above adds up to a very clear case of obstruction of justice, a felony under the penal code. In any other county in the state, I’d bet my last dollar on her being a felon in five years. Her old friend Devon Anderson is the current DA, however, so she’s currently living with a fairly effective shield protecting her. Still, Anderson herself is in a bit of hot water at the moment, for locking up a rape victim in the HC jail to ensure her testimony. This victim, named “Jenny,” was given the choice of staying in solitary confinement or being placed in a tank with other criminal defendants. She chose the latter, and it would appear that she was again sexually assaulted in the jail. At some point, you’d hope that the entire wretched ship would sink in Houston – prosecutors, judges, cops, the whole rotten circus. All we’ve seen thus far is the flooding of some of the lower compartments, however: a judge or corrupt cop here, a county official there. How many times do we have to see stories like that of Jeff or Temple before we realize that we have a far larger problem than just a “few rogue prosecutors”?

Siegler is obviously the focus of much of my reporting on Jeff’s case, but she wasn‘t acting alone. Take her partner in the Temple prosecution, for instance, a man named Craig Goodhart. He was involved in sending Linda Carty to death row in 2002. Recently, Carty was also able to obtain a rare habeas hearing on her case, where her counsel presented detailed testimony and more than 70 exhibits showing that Goodhart and fellow prosecutor Connie Spence destroyed case notes and emails instead of handing them over to the defense, had at least 18 recorded witness statements that buttressed Carty’s claim of innocence erased, and coerced and threatened four key witnesses into changing their testimony in favor of the state’s version of events. Does any of that sound familiar? I want to be very clear about something here. In both the Temple and Carty cases, the appellant was granted a hearing that allowed them to expand the record in very significant ways. Do not think that because these took place in these two cases that this is normal procedure. It isn’t. Temple obtained his hearing because he was represented by some of the best lawyers money can buy. He hired Dick DeGuerin as his trial attorney, for instance.  When I was initially arrested I sent query letters to most of the top-end attorneys in Houston, and was told that DeGuerin’s estimate for my trial was $375,000 – and that was before the experts were even consulted. Carty got her hearing because she was born on the island of St Kitts, which at the time was a British protectorate. She has the full weight of the British crown backing her up, meaning she has the sort of attorneys that the rest of us poor saps can only dream of. Normal defendants do not get this sort of treatment. I’ve never had an evidentiary hearing in my own case, for instance, and Jeff still hasn’t either. I’m mentioning this so that you do not misunderstand the situation here and relax in your concern, thinking that the problem with all of this corruption is being resolved. There’s a good reason that so few defendants get these sorts of hearings, and that is that the system wouldn’t survive in its current state if they were common. Until major changes are made, nearly all of us will be denied relief in absurdly brief rulings, such as one the Texas the Court of Criminal Appeals handed down in Jeff‘s case, which you can read here.

As depressing as the above may be, keep in mind that it’s fairly easy to reform the judiciary. We get the opportunity every few years to throw the bums out, if only we would resolve ourselves to the task. It’s a more challenging prospect to change the culture of the police department, though I will grant you that it would appear that many police agencies across the country are currently in the throes of some very important self-analysis, and I think good things are going to come from this. It bears noting that the lead investigator in Jeff’s case has recently found himself in a bit of hot water. His name was Curtis Brown, and during Jeff’s trial he and several detectives gave Keystone Kops excuses for why none of them seemed to have ever taken notes on the crime scene, each claiming that they thought the other was handling them. When asked why he never bothered to take samples of blood evidence that appeared to come from the perpetrator, he merely smiled and admitted to “poor detective work.” Despite all of this, and despite undeniable evidence that he colluded with Siegler in fabricating a fake ballistics report in order to bring charges against Jeff, Brown was never sanctioned for his shoddy tradecraft. Indeed, at the time he was actually promoted for it.

The incompetence Brown displayed during the Herrera and Tirado investigation was not an aberration. In 1994, Brown was the lead detective in the death of 17-year-old Ruth Majewski. Ruth died at the home where her boyfriend Christopher Stoernell lived with his mother. The two teens and some friends had decided to skip school on this particular day, and passed the morning drinking before planning to go to Galveston. Stoernell had a history of sexual abuse against Ruth, and was known to be particularly violent when drunk. Sometime during the morning, he began to play Russian roulette with a revolver, and reportedly pointed the pistol at Ruth multiple times. The two soon moved to the bedroom, where minutes later the gun was heard to discharge. When the other teens rushed into the bedroom, Stoernell was heard to cry out, “I fucked up.” Ruth blurted out that “Chris just shot me” before she died. Despite what would seem to be pretty clear evidence of at least manslaughter, Detective Brown refused to charge Stoernell, instead believing the boyfriend’s story that Ruth had shot herself while playing around with the pistol.

Ruth’s family was understandably confused by this course of action. When they attempted to meet with Brown, he repeatedly skipped out on them, at one point telling them, “This is homicide; I can’t be here for meetings all of the time.” When Ruth’s older sister Jennifer brought a rose to lay down at the Stoernell home where her sister was killed, Brown called them and threatened to arrest them for trespassing. He basically dismissed Ruth’s death by blaming her for having been drugged up and drunk – even though the  medical examiner’s toxicology report found no drugs or alcohol in her system.

Years later, this case would be reopened by Sheriff Adrian Garcia’s new cold case division, and it became quickly apparent that Brown had not even bothered to consult the medical examiner’s report or a ballistics expert’s analysis, both of which strongly suggested Ruth’s death was a homicide. These reports determined with scientific clarity that the distance from the barrel of the gun to Ruth’s body was of such a length that a self-inflicted wound was simply not possible. Brown himself later admitted that had he reviewed the reports, he would have sought charges against Christopher Stoernell. Instead a violent man was allowed to roam the streets for two decades, during which time he collected more than ten charges for violence against women. Brown is clearly responsible for whatever pain and suffering these women experienced over the years, a point alluded to by Sheriff Garcia when he reviewed this case. Still, for all of this accumulated pain, Brown was suspended for a measly ten days – a disciplinary sentence he is appealing. We may never know the tally that the guilty party in Jeff’s case has racked up since Brown’s careless examination of Steve’s  and Nilda’s deaths, unfortunately. Nevertheless, it is worth a moment of quiet contemplation for each of you to think about just how much misery can accumulate in the world when a single police officer or DA decides to play by their own rules. If you can then extrapolate outward to the combined suffering created by every rotten official in this nation, you might just begin to understand the task ahead of us. We have a long way to go.

When I began this update, I stated that Jeff’s prosecution rested on roughly three pillars of support: the DNA testimony of William Watson, the snitch testimony of Michael Beckcom and Nathan Foreman, and the trust that jurors unthinkingly place in the honesty of the prosecutor. All three of these legs have now been snapped off. And yet: here Jeff sits, still in a solitary confinement cell on death row, still waiting on his federal judge to hold some sort of evidentiary hearing that will allow an expansion of the record. Do you understand now why I can no longer believe in “justice” the way I once did? I just shake my head when spectators to the criminal justice gladiator arena talk about “hope” and “reform.” The problem’s much larger than that. So long as we are a people that prioritizes victory over ethics, we are always going to have cops and prosecutors that cheat; their disease is our disease. If there‘s one thing that Jeff’s case has taught me, it is this: there is no such thing as a winner in a zero-sum game. If you think otherwise, you aren’t looking deep enough, aren‘t weighing the true effects of your triumph in human terms. Until this becomes common knowledge, the blood will continue to flow, just as it always has.

Update to the update:  Since I wrote the above last August, a number of interesting developments have come down the pike.  First of all, the TCCA reluctantly affirmed Judge Gist’s recommendation that David Temple be given a new trial. It was a close ruling, but even the nation’s most conservative and admittedly pro-prosecution criminal court had to admit that their former golden girl Siegler had done something fairly heinous.  Temple was recently released on bond – a remarkable event made possible only because voters in Harris County threw out Republican DA Devon Anderson, Siegler’s old pal, in favor of Democrat Kim Ogg.  A number of people over the years have scoffed at my statement that the death penalty is a political sentence.  This sort of outright refusal to look at very clear statistical data on the counties that seek the death penalty and their political persuasions has always confused me.  Watch Harris County: not so long ago, Harris sent more men to death row in Texas than any other state in the nation.  When moderate Republican Pat Lycos took over the office in 2008, the numbers plummeted, because Lycos was basically a RINO and knew that, in those days, the only way she was going to get elected was if she had an “R” next to her name.  Policy-wise, she looked far more like a Democrat than a Republican.  I expect the trend she started to be continued by Ogg, who has publically stated her ambivalence and outright skepticism of capital punishment.  If the determining factor here isn’t politics, what is it?  It’s not the murder rate, which is actually ticked up a little in Houston in recent years.  More important than Ogg’s words are her actions:  immediately after taking power, Ogg fired more than 30 career prosecutors, the core of which were responsible for death penalty prosecutions. The list read like a “who’s who” of ADAs responsible of the long list of flawed and troubling sentences handed down in Houston over recent decades; Craig Goodhart, mentioned above in connection to the Linda Carty case, was amongst those summarily dismissed.  (You can read this article here) This is great news, but don’t fool yourselves:  this is just a start, and in any case, none of this is “justice” – whatever that means. It’s just power being applied in a way that is diametrically opposed to the way it has been applied in the past.  Maybe power is justice, once you boil away all of the miraculous, transcendental, and Salvationist pretensions usually connected to it in one way or another.  As long as Ogg keeps laying it down like this, you can call it whatever you like.