In Gainesville, Michael Newberry is one step closer to being released from prison, after an official recommendation by visiting judge Lee Gabriel last month to the Texas Court of Criminal Appeals.
As reported a month ago, Michael Newberry’s current attorney, Mark Lassiter, has claimed that Janelle Haverkamp, then the district attorney and now the district judge for the 235th District Court, failed to pass on evidence material to his client’s case. Newberry was sentenced to life in prison in a 1997 capital murder case.
Specifically, Lassiter has said that a co-defendant in the 1997 case, Lilton Deon Moore, made conflicting statements to Haverkamp’s investigators about why the pair approached 62-year-old Granville Hanks before he was eventually killed. In addition, Lassiter claimed there were 10 total statements — nine witness statements and a grand jury transcript — that were not turned over by Haverkamp to Newberry’s court-appointed attorney, including four that he claimed the original trial judge, Jerry Woodlock, unequivocally said should be turned over.
He also has alleged that Newberry’s court-appointed defense attorney, John Morris, had inappropriate contact with Moore and thus gave Newberry inadequate counsel.
All this was part of a hearing conducted in February by Gabriel based on Lassiter filing a writ of habeas corpus in the case. Lassiter has represented Newberry since last year.
Focusing on the issue raised in the first two items, Gabriel has ruled Newberry should have a new trial.
The first page of her ruling says:
“After considering the application, including all exhibits; the amicus curiae brief, including all exhibits; the appellate record from the trial; the record from the hearing on Applicant’s second application for writ of habeas corpus; the evidence presented at this Court’s hearings on Applicant’s third application; Applicant’s first amended agreed proposed findings of fact and conclusions of law; and the law applicable to the grounds raised, the Court RECOMMENDS that Applicant’s request for relief be GRANTED on the sole ground that the State withheld exculpatory evidence and that Applicant be granted a new trial.”
Gabriel’s summary and order, on the last page of the ruling, repeats the second half of the above, orders her court clerk to submit this to the Court of Criminal Appeals, and to submit copies to Newberry and Lassiter.
The amicus curiae brief referenced above was filed by current District Attorney John Warren. Warren said it’s a matter of making sure his office is trustworthy. He said that, after Lassiter presented his writ, his office’s attorneys looked at the information in detail.
The CCA does not have to order a new trial, but it does have that option. The final decision on the disposition of the habeas corpus appeal is in its hands.
The CCA dismissed two previous habeas corpus appeals, but Lassiter has said that they were filed without the evidence available and presented in Judge Gabriel’s hearing. Gabriel agreed.
At the time of the trial, the U.S. Supreme Court’s ruling in Brady v. Maryland required prosecutors to turn over evidence that is “material either to guilt or to punishment,” and specifically emphasized that issues of both guilt and of punishment on conviction were at stake. Gabriel referenced that case about halfway through her ruling. She also noted that “(u)nder Bratfy, it is ‘irrelevant whether the evidence was suppressed inadvertently or in bad faith.’”
Gabriel’s ruling further addressed the issue of whether or not the fatal shooting occurred as part of a robbery, and so, whether or not capital murder could be introduced as a charge against Newberry. She noted that Haverkamp failed to disclose Moore’s statement that they were not planning a robbery.
Gabriel did say that Newberry failed to prove a couple of false testimony claims in the appeal, but did prove some others.
Gabriel also said she did not find credible the claim that Morris was already representing Moore and thus had a legal conflict of interest.
Warren has said he’ll drop the case if the CCA orders a new trial.
Meanwhile, a second judge has issued a ruling that will affect all current and future criminal trials in the 235th District Court.
Judge Haverkamp had voluntarily recused herself from hearing felony cases in her court in February, at the time of the habeas hearing for Newberry.
That voluntary recusal is now mandatory.
Administrative Judge David Evans, who presides over the Eighth Administrative Judicial Region, made that ruling last week.
“I find that as long as Mr. Warren is the District Attorney... that a member of the public would have a reasonable doubt about the impartiality of Judge Haverkamp,” he said in his ruling.
Also, in addition to the pending ruling on Judge Gabriel’s recommendation by the Court of Criminal Appeals, Judge Haverkamp faces a future hearing on possible criminal contempt of court charges.
In a possibly related item, after an executive session at its April 28 meeting, the Cooke County Commissioners Court approved a contract for legal services, specifically to write an amicus brief.
The case for which the amicus brief would apply was not noted in the motion. It should be noted that Judge Haverkamp was in the Commissioners Court meeting room at the time the executive session started. County Attorney Ed Zielinski was not present; neither was District Attorney John Warren.