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Attorneys accuse Dallas DA's Office of withholding evidence

Two attorneys are accusing the Dallas County District Attorney’s Office of systematically withholding evidence in a case that resulted in an 18-year-old man spending almost two years in jail.

DALLAS — Two attorneys are accusing the Dallas County District Attorney’s Office of systematically withholding evidence in a case that resulted in an 18-year-old man spending almost two years in jail.

The attorneys say the prosecutor assigned to the case willfully withheld evidence showing that the mother and one of the children changed their stories. They also say that another prosecutor sought a second indictment on their client when then they refused to accept a plea deal of 15 years in prison.

The district attorney's office has since agreed to drop the charges. It has even taken the rare step of recommending that the cases against the Grand Prairie man be expunged, which would make it as if it never happened.

Except it did happen, and the attorneys say they want the child abuse prosecutors working under District Attorney Susan Hawk to be held to account.

“This was a foregone conclusion that there was vindictive prosecution and prosecutorial misconduct and withholding of evidence and it was a foregone conclusion that this kid was innocent,” said Ashkan Mehryari, one of the man’s attorneys.

News 8 is not using his name to the nature of the allegations against him.

Mehryari and the other lawyer on the case, former State District Judge John Creuzot, have requested that the state bar investigate the allegations of prosecutorial misconduct.

“The whole case just reeks of prosecutorial misconduct,” Creuzot said.

The District Attorneys’ Office didn't respond to a request for comment.

The case originated in 2013 with a bitter custody battle.

The mother of the children and her then-fiancé came forward in December 2013, saying the children had told them their older stepbrother had sexually assaulted them. The children were living with their father at the time.

The boy told authorities that his older brother repeatedly raped him since he was six, and as recently as two days before he told his mother. He said he didn’t tell his dad the following morning because he forgot “everything that happened.”

The girl told interviewers that all three of them were sleeping in the same bed, with their stepbrother in the middle, when he pulled her pants down and raped her. She told the interviewer that he did it “over and over again.” She also told the interviewer that he had first abused her when she was six or seven years old.

Both children were taken to the hospital to be examined.

Despite their claims that they had been repeatedly raped, a medical examination revealed no evidence of sexual abuse on either child.

“There was no tearing, nothing to indicate child abuse,” Mehryari said.

A Grand Prairie police detective told the defendant’s father that the case involving the girl was “shaky” in her interview and that he probably would file charges in that case. The detective ultimately filed a charge alleging that he raped his brother, but not the girl.

A grand jury indicted the defendant in January of 2014 on the case involving his 11-year-old brother.

He stayed in jail because he couldn't make bail.

The defendant had been in jail about a year when prosecutors offered a plea deal of 15 years. His original defense attorney urged him to accept it.

On the day before he was to plead guilty, the family hired Mehryari.

Mehryari says he told prosecutor, Sneha Patel, that his client wouldn't be pleading guilty because the medical records showed no indication of abuse and his client had already passed a polygraph.

He says Patel told him that if he refused to take the deal, then she would look into filing the case over the sister’s allegations.

When Mehryari sought a bond reduction hearing to get his client out of jail, he says she told him that she would move forward with getting an indictment on the sister’s case.

The threat of a second indictment soon became reality, even though prosecutors had video recordings of the detective saying the allegations made by the girl were “shaky.” Prosecutors also had a recordings of the forensic interviewer saying she was confused by what the girl said had happened.

“The state was aware of how weak the case was when they indicted him,” Mehryari said. “Because the case had no merit, it’s a completely unethical thing to do. What you’re saying is I have this power to put you in a more dangerous and perilous position… if you don’t cave in.”

But as he got further into it, he came to believe that the children had made up the allegations at the behest of their mother. He asked Creuzot to join him on the case. Creuzot did it pro bono.

“Based on some of what they said, it looked like it was made up,” Creuzot says. “I became convinced that this kid had not done anything to violate the law.”

As they fought the cases, their client remained in jail on bail totaling $200,000.

“We convinced him that we just needed to have more time and that we would get to the bottom of it eventually,” Mehraryi said. “Eventually, we realized that these kids had told so many stories to so many different people that whatever was their most recent story had to be inconsistent with previous ones.”

They began filing motions demanding that the DA’s office turn over any and all evidence in the case. They say prosecutors didn't comply.

In November, just a few weeks before a scheduled trial date, the defense attorneys filed a third motion and obtained a court order demanding that prosecutors turn over anything. Five days before the trial, when prosecutors hadn't complied, Creuzot sent an email demanding that they turn over any evidence related to inconsistencies in the statements of the children, their mother, and her husband.

On the night before the trial, the attorneys found out that the children had met with the prosecutor assigned to the case, Joe Flores. Prosecutors made multiple plea offers during that time ranging from 40 years in prison to their client being put on a form of probation that would leave him without a conviction.

The attorneys repeatedly rejected plea offers. They continued to demand that prosecutors turn over any evidence of inconsistent statements.

On the morning of the trial, as plea negotiations continued, the defense attorneys continued to make demands for the evidence they believed was being withheld. At one point, they say Flores told them he would get the information to them later. He said at other points that all of the information had been turned over.

They also say Flores indicated he was following the orders of his bosses.

That same morning, two hours after the trial was scheduled to start, Flores filed a notice entitled, “State’s Response for Request of Inconsistent Statements.” Prosecutors had been aware of it for 11 days. Flores’ notice stated that he has provided all of the “of the discoverable evidence” related to the case.

When the defense attorneys asked Flores why they were just finding out about those statements, they say, he told them, “It was on my investigator’s iPad.”

Those statements included the girl had told DA investigator that she did not remember the rape. The mother of the children also was now saying she was alone with no other adults present and not in a vehicle when the children told her about the abuse. The previous story had been that her fiancé had been in the car with her.
Her fiancé had also previously given sworn testimony that he was in the car when the children first made their outcry.

After the defense attorneys confronted the prosecutors about issues with the case involving the girl, prosecutors dismissed the case involving the sister that afternoon.

“They tried to negotiate a plea on the case knowing that he’s in possession of this evidence,” Creuzot said.

The defense attorneys say Flores violated ethical rules, as well as the U.S. Constitution, by engaging in plea negotiations with them even as he had information in his possession that undermined both cases. That, they say, indicates bad faith on the part of the DA’s office.

To get their client out of jail, Mehryari and Creuzot agreed to let their client plead no-contest to a much less serious charge of negligent injury to a child. Their client was released that same day after spending 22 months in jail.

Cruezot began reaching out to high-ranking members of the DA’s office. He met with First Assistant District Attorney Messina Madson and Felony Trial Bureau Chief Kevin Brooks to report the misconduct of their prosecutors. Cruezot says Madson promised that she would get back to him in five days.

That response from Madson never came, he says.

A short time later, Flores resigned from the District Attorneys’ Office. He could not be reached for comment.

Prosecutors told the defense attorneys that they would either agree to a new trial or they could live with the plea agreement that they’d made.

Still, the defense attorneys continued to fight to clear his name. They filed a 52-page motion outlining a litany of allegations of prosecutorial misconduct and vindictive prosecution.

In late March, on the day a hearing was scheduled to be held on the motion, prosecutors agreed to drop the remaining charge. Brooks also filed a notice recommending that records of the cases be expunged, a rare move that would make it as if it had never happened.

“That’s very unusual,” Creuzot said. “They want this to go away.”

It was only after the case had been completely dismissed that prosecutors finally turned over those notes from the investigator. They were actually handwritten. There was no iPad as Flores had claimed.

Those notes also contained information that had been withheld from them, they say.

“The worst part about it is he's sitting there in prison wondering every morning for two years, just waking up wondering what's going to happen to me tomorrow,” Mehryari said. “I don’t believe these people should be allowed to practice law. We trust prosecutors with so much and we give them so much credibility and benefit of the doubt that when something like this happens, it’s very difficult to uncover.”

They say their client is now doing well and enrolled in college, but having a tough time finding stable work since the criminal cases are still technically on this record. His family is trying to gather the funds to file for the expungement.

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