The Dereliction of Duty: Texas Prosecutor Found To Have Intentionally Withheld Critical Evidence In Latest Of Long-Line of Ethical Violations

J_DutyThere is a curious case out of Georgetown, Texas, where Williamson County District Judge Rick Kennon has ruled that Williamson County District Attorney Jana Duty intentionally withheld evidence in the murder trial of Crispin Harmel. However, Kennon refused a defense motion to bar a second trial under the double jeopardy clause. There is no indication of any punishment for Ms. Duty for this case. She continues to serve as a lawyer and a prosecutor in Texas. She has however racked up an impressive number of allegations of misconduct and was sent to jail in August for contempt. However, it is odd not to see a direct referral by the court. I can understand the ruling, though the Texas Court of Appeals recently extended double jeopardy protections to a case where prosecutors intentionally forced a mistrial to avoid an acquittal. However, at a minimum, one would expect a court to deal separately with the violation of her core obligations to the court and the bar.


Harmel was tried for the 2009 death of Jessika Kalaher. However, Duty withheld key timestamped surveillance video from a Walmart parking lot where prosecutors believe Kalaher was killed. Harmel’s lawyers argued that Duty intentionally withheld the evidence to cause a mistrial and get a second chance to convict Harmel.

The Court in the findings (available here) say that it is a mystery why the evidence was withheld but finds that it was an intentional violation by Duty: “It is unknown to the court why Ms. Duty intentionally and willfully withheld the means to view timestamps on the Walmart Survelliance video other than from Ms. Duty’s statement that ‘[defense attorneys] acted so horribly to me during the first trial, that I just didn’t even want to speak to them.’ The Court does not approve of this conduct or the reason for it. However, the Court finds no evidence that Ms. Duty intended to goad a mistrial or avoid an acquittal.”

The only explanation given by Duty was perfectly juvenile: “[defense attorneys] acted so horribly to me during the first trial, that I just didn’t even want to speak to them.”

Putting aside the question of double jeopardy, there is the question of Duty’s standing as a prosecutor or a lawyer. There is no reference anywhere of a referral to the Bar. The decision details statements by Duty that she did not know of any time-stamped evidence when she clearly did know of the evidence and discussed it previously with her staff. This includes testimonial statements that appear false.

mugshotShe was not hard to find last month. She was sent to jail for 10 days for an act of contempt in speaking with the media. She took this rather happy mugshot. She has been accused of perjury with regards to her media contacts during a gag order.

There is also a video made by her husband that was sent to defense lawyers and submitted as an example of Duty’s unprofessional conduct, though Duty insists that it was never meant for public viewing (which given the juvenile content is hopefully true). The video is available here.

She was reprimanded in 2011 by the State Bar but was allowed to continue as a prosecutor.

She is also facing this ethics complaint:

Texas Rules of Professional Conduct states that a lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

Ms. Duty has failed to live up to any of these standards as a lawyer and especially the elected Chief Law Enforcement Officer of Williamson County. She has shown a great degree of disrespect and contempt for the Court, witnesses, the law, the State Bar of Texas and most importantly, the truth.

Recent reports from the media, court and other filings indicate that Williamson County District Attorney Jana Duty-Hunsicker AKA Jana Duty has apparently engaged in serious professional misconduct.

According to these reports, Ms. Duty has also committed perjury, blatantly violated Court orders, filed fraudulent government documents, threatened and harassed witnesses and other attorneys along with the Court. Ms. Duty has defied court orders on several occasions, released confidential information on multiple occasions both of individuals and witnesses, broken TCIC/NCIC laws and allowed a serious breach of security in the Williamson County District Attorney’s Office.

Ms. Duty took an oath not only as an attorney but also as an elected official, and by her own actions, has failed both.

Based on the above provided information in this complaint, court records, public filings, media articles and Attachments provided, Ms. Duty’s appears to have violated but not limited to thirty-four (34) of the Texas Disciplinary Rules of professional Conduct listed below:

Disciplinary Rule 1.02 (c): Scope and Objectives of Representation

Disciplinary Rule 1.05 (b)(4) Confidentiality of Information

Disciplinary Rule 1.06 (a) (b)(1)(2) Conflict of Interest: General Rule

Disciplinary Rule 3.01 Meritorious Claims and Contentions

Disciplinary Rule 3.03 (a)(1)(2)(5) Candor Toward the Tribunal

Disciplinary Rule 3.04 (a) (b) (c) (2) (3) (4)(e) Fairness in Adjudicatory Proceedings

Disciplinary Rule 3.04 (d) Violating Court Order

Disciplinary Rule 3.05 (b)(1)(2) Maintaining Impartiality of Tribunal

Disciplinary Rule 3.07 (a) (b)(1)(4) Trial Publicity

Disciplinary Rule 3.08 (a) Lawyer as Witness

Disciplinary Rule 3.09 (d) (e) Special Responsibilities of a Prosecutor

Disciplinary Rule 4.01 (a) Truthfulness in Statements to Others

Disciplinary Rule 4.04 (a) (b)(1) Respect for Rights of Third Persons

Disciplinary Rule 5.01 (a) (b) Responsibilities of a Partner or Supervisory Lawyer

Disciplinary Rule 8.04 (a)(1) Misconduct

Disciplinary Rule 8.04 (a)(2) Committing A Criminal Act

Disciplinary Rule 8.04 (a)(3) Dishonesty, Deceit, Misrepresentation

Disciplinary Rule 8.04 (a)(4) Obstruction of Justice

Disciplinary Rule 8.04 (a)(5) State or Imply an ability to influence improperly a government agency or official

Disciplinary Rule 8.04 (a)(12) Violating Laws Related to Professional Conduct

25 thoughts on “The Dereliction of Duty: Texas Prosecutor Found To Have Intentionally Withheld Critical Evidence In Latest Of Long-Line of Ethical Violations”

  1. PCS,

    Issac would have us believe that the Preamble, Constitution and Bill of Rights are the same as the Communist Manifesto, when the Manifesto was introduced 60 years after the American founding documents precisely because it was different and changed everything ideologically and politically.

    If Karl Marx presented a “strong central government,” the American Founders established the dominion of individual freedom. The Manifesto revoked individual freedom and replaced it with the collective.

    The “interpretation” the SCOTUS seeks is the clear text of the Communist Manifesto. Espousing the Communist Manifesto, the SCOTUS will no longer be required to commingle definitions.

    What proponents of collectivist dictatorship must do is acknowledge and swear their loyalty to the Communist Manifesto and deny, rescind and revoke the Preamble, Constitution and Bill of Rights.

    “This above all: to thine own self be true,
    And it must follow, as the night the day,
    Thou canst not then be false to any man.”

    ― William Shakespeare, Hamlet

  2. “I began by telling the president that there was a cancer growing on the presidency and that if the cancer was not removed the president himself would be killed by it.”

    John Dean
    1973

    __________

    There’s a cancer growing on the judicial branch.

  3. Americans are well known for pointing the finger at other countries’ failures. We get angry when this happens because Americans are supposed to be above this. However, nothing seems to be done. The problem lies in the almost religious desire to micro manage through independent groups. Most of these despicable sorts are simply not answerable to a higher or central power. The great fear some Americans have of a strong central government is unique to them and works against efficiency, accountability, and common sense.

    It may be nonsense but it’s American nonsense.

    1. issac – the Chinese Communists have a strong central government, but they are far from efficient.

  4. Someone else, with a similar record of misdeeds, would have been booted and sanctioned a long time ago. The mystery as to why she remains, seemingly untouched, is–at least for me–no mystery at all. These positions, which are government jobs, are usually offered to those with connections, and those same connections often serve to shield these individuals from scrutiny or harm. I witness it frequently, where prosecutors–who are so lacking in the skills or temperament to fulfill their duties–remain in these positions because of the muscle used to obtain and secure these jobs. They are there, often, because someone owes someone a favor, and granting the dim-witted, slow nephew or niece a job serves to even the score or debt. One prosecutor, working for the State of Missouri, is such a loose canon–known for her frequent and outrageous outbursts, both in and out of the court–is not fired; she is merely retained, for years, put in a back office to keep others safe and allowed to maintain her job. Her father-in-law–a major benefactor with regard to various political campaigns–makes sure of that.

    1. bam bam – I think both the prosecution and defense should be drawn from the same pool of lawyers. One week you do prosecution, next week you do defense. It would keep you from getting either defense or prosecution minded. It would also mean that alleged criminals would get better attorneys.

  5. I practiced criminal law for over 30 years and found that witholding exculpatory evidence by prosecutors was quite common. A large number of prosecutors are not interested in justice, but only convictions. This a sad fact, but true.

  6. This is about ETHICS, not what GD law school someone attended. Wall Street is filled w/ top attorneys from Ivy League law schools and they make this woman look like a petty thief. No one is tougher on attorneys than myself. There are many ethical prosecutors. I was honored to work for one. But, if anyone thinks that righteous attorneys will stand up and confront the bad ones; well, that happens right after “moderate Muslims” start standing up. I know there are many good attorneys, cops, Muslims, etc., but son’t hold your freakin’ breath on them stepping forward.

  7. Although I am generally loath to suggest government involvement in much of anything, I think the Dept of Education or some other federal agency should take over the accreditation process for law schools. The ABA has failed the law profession and the public by accrediting any piss poor excuse for a law school that comes along. With the accreditation, comes the ability to receive federal student loans and vets benefits, creating a glut of poorly prepared lawyers for whom there will never be jobs. We have a massive pool of underemployed lawyers saddled with mountains of student loan debt. There are not enough jobs and their only recourse is ambulance chasing and filing increasingly frivolous lawsuits. A federal accreditation process would hopefully eliminate about half the law schools in the country – or at least deny federal student aid to their students – which will effectively shut them down.

    1. TinEar – this woman passed the same Bar exam as did the top tier law school graduates. There are only a limited number of states that do not require their law students to take the Bar. The last entity you want accrediting your school is the feds. When is the last time they did something well?

  8. The police profession is under attack for criminal behavior with the proliferation of ‘cams’. There will obviously be an over extension of this phenomena that will adversely affect a few targeted and innocent officers but the preponderance of occurrences of police brutality, murder, and general abuse of authority are well founded and will make for better police departments.

    Something(s) along this line, exposing abuse by lawyers in a more immediate manner, is long overdue in the legal profession. The problem is that when a police officer commits a crime he or she ends up in front of a judge, prosecuted by a lawyer. Where do the prosecutors and judges end up. The media must apply the same coverage to this abomination as they do to the overreach of the police.

    We need to see faces plastered on the front pages of major newspapers illustrating the activities of these remorseless holier than thou public servants.

  9. 1. This case has nothing to do with the gender of the prosecutor or the law school she attended.
    2. This “lawyer” should be jailed (possible attempted murder charges re evidence wittheld) and disbarred.

    Judges and State bars are far too passive when it comes to lawyer discipline. What is going on in this situation seems to be a pattern of inappropriate behavior. The fact that the judge did not immediately refer this to the Bar Committee is pretty appalling.

  10. The comment by Warspite is spot on. Or Right ON! There are too many lawyers and too many lawyers spoil the broth. Too many dumb schmuck law schools and of the good law schools they graduate too many students each year. Hence there is the huge mass of unemployed lawyers and much of the new law school student grad pool is schmuck. Close some of these newer schools. Drop the intake of new students way down in the other schools.

  11. The United States is the world’s leading “spender” in electing judges, no other nation comes close. Maybe we should be looking at campaign contributors instead?

  12. Professor Turkey will never address the most obvious cause of this stuff.

    Here is some woman who graduates a third or fourth tier law school in 1997, and in 2004 is running (and winning) for County Attorney. What do you expect from such a background?

    The profession of law has changed so much since the 1970’s, and much of it is due to the proliferation of lousy law schools producing lousy attorneys. The U.S. does not need 250 law schools. Cutting the number down to 150 would be a good start. If you have a 3.0 gpa in college & money (or are willing to take on $150k+ in debt) you can get in some law school. If you have a 2.8 gpa you can likely get in somewhere.

    So, Professor Turley, how about it? Are you willing to start a drive to close 100 American law schools? To pull accreditation? Or is everyone entitled to be an attorney?

  13. Come on Professor Turley, you know what Texas is like. You know that with the right connections, anything goes.

    This, just for instance:

    The Court of Appeals in Austin said former governor Rick Perry’s 2014 felony indictment “charging him with coercion of a public official violated his free speech rights. Accordingly, it cannot be enforced”.
    He still has a second charge of misuse of the governor’s office.

    Texas does what Texas wants.

  14. How many others did she harm?

    Court needs to review all of her convictions.

    Texas justice?

  15. Your profession Prof. Turley, is corrupted beyond recognition. Only a handful, like yourself, seem to stand above the fray. That’s the perspective from this layman. You probably see this daily onslaught, still, as a aberration, something of an outlier effect..

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