There's evidence of misconduct in Harris County, Texas, after prosecutors failed to disclose that three of the state's witnesses in a related case had been paid to testify.
Vernon Brooks and Joseph Bailey are accused of murdering Sergio Saldana in 2012. Bailey was tried and convicted of murder in February 2015, due in part to the testimony of three informants. According to the Houston Chronicle:
Before trial, [Prosecutor Sarah] Mickelson acknowledged that she intended to put several informants on the stand and said they did not receive any benefit for their testimony, according to Bailey's attorney, Mike Trent.
"We specifically had a pretrial hearing regarding this subject," Trent said. "And [Mickelson] assured the court that no promises of leniency or other benefit had been made to any of the witnesses."
Trent said he asked if there were any "paid" informants and was told no. He said the testimony of the three were essential to convicting his client, who Trent maintains, is innocent.
Despite Mickelson's assertions to the contrary, however, the FBI had paid the three informants a total of $5,000. An attorney discovered the payments after the witnesses told Brooks' defense team that they had been paid. Prosecutors never voluntarily came forward with the information.
Mickelson is claiming that she didn't know about the payments, but defense attorneys for both Bailey and Brooks aren't falling for it. Brooks' attorney, Paul Morgan, filed a number of government requests for information under the Freedom of Information Act, and requested records and details from the FBI. That's when he discovered receipts. See more below.
Bailey's appellate attorney stated that Mickelson "almost certainly hid crucial evidence and lied to the court."
"FBI receipts prove Ms. Mickelson's secret approval of payments of $5,000 to her witnesses within hours of the jury's verdict in Mr. Bailey's case," said Lana Gordon. "The Harris County District Attorney's Office appears to have conspired with the FBI to hide payment for witnesses' testimony."
Evidence suggests that Mickelson did not only commit a Brady violation by failing to disclose evidence, she explicitly lied to the court and then conspired with the FBI agent to protect herself.
Mickelson is still claiming innocence, and filed a brief with the court that included her story:
"I understood from (the FBI special agent) that he intended to seek approval from his superiors to release federal funds because the three witnesses had been threatened by the ABT. I did not receive any further communication to indicate that (the special agent) had successfully obtained the funds he requested to help the three witnesses relocate and change their contact information or that he had dispersed the money."
Yet, even if Mickelson's sworn statement is true, she's admitting that she knew witness payment was a possibility, understood that such payment required disclosure, and yet failed to get a confirmation or denial of payment from the FBI.
At best, she failed to do basic follow-up on a critical matter in a case where a man's life is at stake.
The Chronicle reports that "While Morgan was spending months trying to verify that the witnesses had been paid, Mickelson was promoted to a supervisory position[.]"
Perhaps this is unsurprising: Prosecutors in Harris County have repeatedly been found guilty of misconduct.
Attorneys for Vernon Brooks are calling for his charges to be dropped, and Bailey's attorneys are working to appeal his conviction.