There 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.
She 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 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