March 23, 2004 - The Austin American-Statesman ( TX) State Bar Sends Message To Prosecutors Who Bend Ethics Rules

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Prosecutors Who Stray Across Legal And Ethical Lines To Win Convictions Should Take Note Of A More Aggressive State Bar Of Texas

Editorial Board, American-Statesman Staff

(Forward by Alan Bean, Friends of Justice, Tulia, TX

Friends:

This is the first media mention of unspecified "sanctions" against DA Terry McEachern for unspecified ethical violations in the course of the Tulia drug sting. The headline below is a tad on the triumphal side. It should read: "State bar sends message to prosecutors who bend ethics rules in cases gaining national notoriety." Why, the editors ask, did Terry McEachern go ahead with flawed cases against the forty-six defendants in Tulia? Because he figured nobody was going to call him on it, that's why. Did McEachern think Coleman was a credible witness? He didn't give a damn one way or the other.

Neither did Ed Self, the judge who presided over six of the eight jury trials in Tulia. The Joe Moore trial showed that juries were willing to convict on the basis of Coleman's testimony and hand down unspeakably harsh sentences (90 years in Moore's case). Public officials like Sheriff Larry Stewart, Judge Ed Self and prosecutor Terry McEachern didn't know if Coleman was telling the truth -- but they didn't know he was lying either. So the less they knew about the shady creature the better. Unfortunately, a tiny group of uncredentialed but incredulous citizens in Tulia (black and white) weren't so easily convinced. The rest, as they say, is history. - Alan Bean)

The bar initiated an investigation of Terry McEachern, the Swisher County district attorney who relentlessly pursued felony convictions of dozens of Tulia residents on trumped-up drug charges in 1999 -- despite a lack of evidence. In investigating McEachern, the bar is sending a message that it won't look the other way when prosecutors hide evidence from defense lawyers or permit key witnesses to make false statements under oath. This isn't the only case in which a prosecutor has bent or violated ethics rules to win cases. Nonetheless, this is a rare and significant occurrence in Texas justice, signaling that prosecutors who conduct themselves unethically will answer to the state bar.

As the entity that licenses Texas lawyers, the state bar is responsible for ensuring that defense attorneys and prosecutors abide by state ethics codes. Typically, investigations of misconduct by the bar are focused on defense lawyers in private practice because most probes are generated by complaints from people they represent. But the bar can initiate its own investigation against publicly elected lawyers when warranted.

McEachern, in an abuse of his authority and taxpayers' dollars, is accused of wrongly prosecuting Tulia residents, almost of them African Americans, for bogus drug crimes that carried prison sentences of up to 99 years. Dozens were convicted and imprisoned before the cases began unraveling.

McEachern ignored early warnings that the Tulia drug cases were a sham. Tulia defendants were convicted almost solely on the word of undercover officer Tom Coleman, and there is good reason to believe that McEachern knew Coleman's unsubstantiated word and evidence were not credible.

Why McEachern went forward is anyone's guess, but it's worth noting that Texas district attorneys are elected and typically win or lose elections on their record of convictions. The Tulia drug sting and cases that involved dozens of people certainly boosted McEachern's political profile with voters in the Panhandle, though that has since soured.

Voters in Swisher and Hale counties earlier this month rejected McEachern's bid in the GOP primary for re-election. But that is not the end of his problems. Upon completing its investigation of McEachern, the state bar recommended sanctions in response to its findings that misconduct occurred. McEachern has rejected the sanctions and, as is his right, will contest the bar's findings and sanctions in court.

Bar officials declined to specify McEachern's misconduct. We know from Tulia court records, however, that McEachern failed to turn over important facts that would have helped defendants and suppressed information that almost certainly would have impeached the state's key -- and only -- witness, Coleman. For his role in this miscarriage of justice, Coleman is facing felony perjury charges.

But lest we forget, the true victims of Tulia were the 38 men and women who were wrongfully convicted and imprisoned, many spending years behind bars away from their families and loved ones.

Prosecutors who cheat to win convictions rarely face consequences because their wrongs are uncovered years after the misconduct occurred. That's what happened last month, when the U.S. Supreme Court reversed the death sentence of inmate Delma Banks after finding that Bowie County prosecutors had violated Banks' constitutional rights by withholding evidence for nearly two decades and permitting key witnesses to lie about the 1980 slaying of a Texarkana teenager.

It is refreshing to know that the state bar is awake and doing its job in holding cheating prosecutors accountable. Such prosecutors undermine public confidence in the judicial system. Now the bar should look into the Banks case.