WR-82,467-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/8/2015 4:52:11 PM
Accepted 12/9/2015 8:01:17 AM
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA
FOR THE STATE OF TEXAS CLERK
AUSTIN, TEXAS
RECEIVED
COURT OF CRIMINAL APPEALS
' I __ :_
EXPARTE § 12/9/2015
""'"''':., 1:;\J ·' \
ABEL ACOSTA, CLERK ocrurY
§ ----- -~--~~-"
§ NO. WR-82,467-01
§
STANLEY ORSON MOZEE ·§
CAUSE NO. F99-02631-R
WRIT NO. W99-02631-R(A)
EXPARTE § IN THE DISTRICT COURT
§
§ 265ru JUDICIAL DISTRICT
§
STANLEY ORSON MOZEE § DALLAS COUNTY, TEXAS
APPLICANT STANLEY MOZEE'S OBJECTIONS TO TRIAL COURT'S
SUPPLEMENTAL FINDINGS OF FACT
IN RESPONSE TO REMAND ORDER
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES STANLEY ORSON MOZEE, Applicant herein, and
submits these Objections to the Trial Court's Supplemental Findings ofFact In
Response to Remand Order, and would show the following:
INTRODUCTION
While it is not uncommon for a writ applicant to allege a Brady violation,
the due process claims brought by Mr. Mozee and his co-defendant, Dennis Allen,
Applicant Stanley Mozee's Objectio11s to Trial Court's Supplemental Findings of Fact in Response to
Remand Order- Page 1
are unusual and well-founded. There is no dispute among any of the nllilierous
attorneys and judges who have reviewed the record - including the former trial
prosecutor himself - that a wealth of Brady/Giglio material regarding at least two
criminal informant witnesses (as well as several eyewitnesses) was not heard by
the juries that convicted either Applicant of capital murder. Nor is there any
dispute that (1) the Brady material was known to the prosecutor well prior to trial,
and (2) if it was not disclosed, and/or if the informants testified falsely about these
matters, both Applicants are entitled to relief. In addition, this is a case in which
the State has already agreed, based on the extensive record, that new trials should
be granted to both Applicants, and the district court reached a similar conclusion in
detailed, written findings entered over one year ago.
This writ comes back to this Court after a remand hearing before a
newly-assigned district judge, the Hon. Teresa Hawthorne (at which it emerged
that Judge Hawthorne has !mown the trial prosecutor, Rick Jackson, for over
twenty-five years). After the hearing, and without waiting for the reporter's
record, Judge Hawthorne summarily entered findings that Mr. Jackson was
"credible" in his personal belief that he must have turned over the core Brady
material in question to Mr. Mozee, which consisted of two letters written to the
prosecutor by the lead informant in his case, Zane Smith. However, the trial
prosecutor actually admitted at the hearing that he ( 1) had no recollection of
Applicant Stanley Mo:r.ee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order- Page 2
actually tmning over the letters to Mr. l\11ozee's counsel, (2) fom1d no notes or
other documentation in any way indicating that he did so, and (3) did not disclose
at least one of these two letters, which specifically discussed the benefits that
Smith had been promised by the State in exchange for his testimony.
The district court's Findings are clearly not supported by the record, because
they made no mention of these and other key concessions by former ADA Jackson.
Were that not enough, there are numerous other reasons why Judge Hawthorne's
view that Mr. Jackson was "credible" in his personal belief (but not his factual
recollection, as he admitted he had none) that he likely complied with Brady is not
supported by the record. These include that the court failed to consider
substantial, unrebutted evidence in the record that the trial prosecutor (1)
repeatedly violated what he claimed were his own practices regarding informant
testimony when it came to this case, (2) admitted that he failed to correct false
informant testimony at the Allen trial, and (3) committed numerous other Brady
violations in the course of prosecuting both defendants, by failing to disclose
exculpatory information that his own file notes confirm was known to him. Such
evidence is particularly significant where, as here, the former prosecutor admits
that he has no recollection nor documentation as to his compliance with Brady in
this case, but simply believes that he did not violate the law, whether intentionally
or inadvertently .. Yet the district court inexplicably failed to consider any of it.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findiflgs of Fact in Response to
Remand Order - Page 3
This Court has repeatedly declined to adopt a trial court's findings under art
11.07 if they are not supported by the objective record. Here, the record not only
does not support Judge Hawthorne's cursory factual findings- it strongly supports
the detailed Findings of Fact and Law entered by the district judge who had earlier
presided over these writs. Indeed, as discussed infra, the correctness of the
former district judge's findings recommending Brady relief were only strengthened
by the additional testimony and documentary evidence presented on remand.
PROCEDURAL HISTORY
Applicants Stanley Mozee and Dennis Allen were convicted the
robbery-murder of the Rev. Jesse Borns, Jr. - a Dallas shopkeeper who was
stabbed to death in April 1999 -- at separate trials in August and September, 2000.
Both Applicants maintained their innocence of the murder at trial, and continue to
do so.
No forensic evidence or eyewitnesses connected either defendant to the
crime. Instead, the State relied on a highly problematic "confession" by Mr.
Mozee, who suffered from a history of mental illness (and whose diagnoses had
been confirmed by County and State officials). The "confession" was written out
for him to sign by a lone detective, contained no information that was not already
known to police, and was inconsistent with much of what police did know to be
true about the murder and the crime scene. Indeed, Mr. Mozee's "confession"
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 4
bore numerous features common to other, proven false confessions, as reflected in
both social scientific reseaxch and case studies of the more than 25% of
post-conviction DNA exonerations to date that involved false confessions. 1
The remainder of the State's case against both Applicants rested on
uncorroborated claims made by a series ofjailhouse informants and other
witnesses with criminal records and/or pending charges. At Mr. Mozee's trial, a
single jailhouse informant (Zane Smith) testified; he claimed that Mr. Mozee had
confessed the murder to him while at the County Jail. The State relied heavily on
Smith's alleged "corroboration" for Mr. Mozee's custodial confession, as well as
his claim that Mr. Mozee was faking symptoms of mental illness as part ofhis
defense. At the time Smith made these allegations, he was incarcerated at the
County Jail, facing up to 20 years in prison on pending theft charges as a prior
felony offender; however, three weeks before he testified against Mr. Mozee, he
was given a highly favorable plea and sentence in which he received only 365 days
State Jail time. . Smith also testified at Mr. Allen's trial, along with a veritable
parade of similarly dubious (and uncorroborated) criminal informants, who each
claimed to have overheard Mr. Allen admit to the crime or otherwise claimed that
1
See, e.g., Applicants' Joint Memorandum of Law in Support of Applications for Writs of Habeas Corpus,
filed Sept. 11, 2014, at 14-17 (discussing Mr. Mozee's false confession, including its Jack of corroboration/conflicts
with other known case facts); Writ hearing Exhs. 4-6 (scholarly articles and studies regarding false confessions,
including DNA exoneration cases); Innocence Project, False Corif'essions and Admissions, available at
http://www.innocenceproject.org/causes-wrongful-conviction/false-confessions·or-admissions (discussing data and
underlying causes of false confessions in DNA exoneration cases).
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Reman4 Order - Page 5
they could establish some link between l\/Ir. Allen and the murder victim.
On September 11, 2014, both Mro Mozee and Mr. Allen filed Applications
for Writs of Habeas Corpus under Tex. Code Crim. Proc. art. 11.07 and 11.073.
The writs and their accompanying Joint Memorandum of Law represented the
culmination of a multi-year investigation into Applicants' claims of innocence,
conducted by their counsel at the Innocence Project and Innocence Project of
Texas, with the cooperation of the then-Dallas County District Attorney, Craig
Watkins. The writ raised multiple grounds for habeas relief, including
DNA-based claims of actual innocence, and a claim that new scientific evidence
would have likely resulted in acquittal had it been available at trial (citing the
results of state-of-the-art DNA testing conducted by the parties over several years).
See Joint Memorandum of Law filed 9/11/15, at 64-84.
In addition, both Applicants presented new evidence that the former trial
prosecutor had violated their rights to due process by (1) withholding numerous
items of exculpatory evidence regarding testifying jailhouse informants, and (2)
knowingly eliciting and/or failing to correct false testimony given by at least two
of those informants, as well as by the lead detective in the case. See id. at 85-108
(discussing claims for relief under Brady v. Maryland, 3 73 U.S. 83 (1963 ), and
Napue v. Illinois, 360 U.S. 264 (1959). These claims were based primarily upon
contemporaneous c01Tespondence from two of the informants - Zane Smith and
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response ta
Remand Order - Page 6
Lonel Hardeman - that expressly discussed the benefits that the trial prosecutor
had promised to give them, and/or that they were demanding from the State, in
exchange for their testimony, but which directly impeached what the jury had been
told about the trial prosecutor's communications with these witnesses. See id.
These materials were in the prosecutor's trial file, but were only disclosed to the
defendants as part of the Dallas County District Attorney's "open file" policy,
which was not in effect at the time Applicants were convicted.
In light of all the evidence developed and reviewed during the pmiies'
respective investigations, the District Attorney concluded in October 2014 that
both Applicants were, at the very least, clearly entitled to Brady relief, and that the
case was of such a nature that both Applicants should be released on personal bond
pending this Court's review of the record. (They were released on October 28,
2014 and, thanks in part to their family and community ties, have fully complied
with all terms and conditions of bond. Due to his medical needs, Mr. Mozee has
lived primarily in a supportive housing community in Dallas, while Mr. Allen has
resided with his extended family in the Dallas County area.)
Specifically, Judge Stolz found it "readily apparent" from the documentary
record tbat that the trial prosecutor had failed to disclose the State's extensive
correspondence with informants Smith and Hardeman regarding the benefits they
sought and/or expected to receive from the State, in violation of Brady as well as
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 7
the trial judge's written discovery orders. The court held that the trial prosecutor
had fbrther suppressed "the substantive discussions with the informants that
underlies this correspondence," and had failed to correct false testimony by these
informants about the matters reflected in their letters. The court proceeded to find
that these violations were material, in that they "undermine[cl] confidence in the
verdict[s]" against both Applicants, and required relief under Brady and related
authorities. The parties and the trial court further agreed to defer any action on
Applicants' remaining grounds for relief.
On February 4, 2015, this Court issued identical remand orders in both
Applicants' cases, instructing the trial court to further develop the factual record
regarding both Applicants' Brady claims. Specifically, this Comi ordered the
trial court to "provide the trial prosecutor with the opportunity to respond" to the
Brady allegations. The trial court was further ordered to issue supplemental
findings of fact and conclusions of law regarding "the response, if any, of the trial
prosecutor."
Upon receiving the remand order, the Judge of the 265th Judicial District
Court, Judge Jennifer Bennett, recused herself from hearing this case (Judge
Bennett had previously served as a felony prosecutor in the same District
Attorney's Office as Rick Jackson, the former lead prosecutor in both the Allen
and Mozee cases). The original findings in this case were made by Judge Mark
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 8
Stoltz, who was at that time Judge of the 265th Judicial District Court, but who left
office at the end of 2014.
Following Judge Bennett's voluntary recusal, Judge Teresa Hawthorne of
the 203rd Judicial District Court was assigned to preside over the cases. Judge
Hawthorne did not work in the Dallas District Attorney's Office with Mr. Jackson.
However, it was revealed at the hearing that she and Mr. Jackson had known one
another for twenty-five years (indeed, Mr. Jackson reminded Judge Hawthorne of
that fact, and addressed the judge by her first name, while on the record)
(RR.I.:46). The State was also represented by a new District Attorney, with
fonner Judge Susan Hawk having replaced former District Attorney Watkins as
Dallas County District Attorney as of January, 2015, and ADA Patricia Cummings
replacing Russell Wilson as the Chief of the Conviction Integrity Unit.
On October 26-27, 2015, Judge Hawthorne held an evidentiary hearing
pursuant to this Court's remand order. The focus of the hearing was former ADA
Jackson's testimony. At the time of the hearing, Mr. Jackson had "retired" from
the practice of law. (R.I: l 0.) After leaving the Dallas District Attorney's
Office in 2007, he briefly worked as a defense attorney, and then was hired as an
assistant prosecutor in Denton. (Id. at 11.) He left Denton County in 2013 due to
what he characterized as a"[m]utual disagreement with my boss." (Id.) When
asked to explain what that disagreement was, Mr. Jackson stated, "It had nothing to
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 9
do with anything except his desire for me to be weak orr crime and my desire to
prosecute cases fully." (Id at 12.)
As discussed in greater detail infra (and in the accompanying Objections
filed herewith by Mr. Allen) Mr. Jackson candidly admitted that he had no
recollection whatsoever regarding whether or not he provided the correspondence
from these informants to either Applicant's trial counsel. He did not deny that all
of the letters were Brady/Giglio material; he simply maintained that, because it
would have been his practice to make timely disclosure of exculpatory
information, he presumes he did so in the Mozee and Allen cases.
Mr. Jackson agreed that he was given a full and fair opportunity to review
his trial file weeks before the hearing (which included extensive handwritten notes
that he himself prepared, during and prior to trial, including detailed notations
regarding discovery he had shown or given to counsel). He was also provided his
own copy of a CD with the entire reporter's record from both trials. (R.R.II:
124-26, 146.) Mr. Jackson's practice was to keep well-organized and meticulous
documentation of his work on a case, including what was provided to defense
counsel in discovery, and he was known to be extremely thorough in his
documentation. (R.RJ: 109-10).
During his file review, however, Mr. Jackson admitted that he found no
specific mention of any of the infonnants' letters in any of the detailed lists he
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Fb1dings of Fact in Response to
Remand Order - Page 10
111ade about what he showed or provided to defense counsel. Instead, he found
one -- and only one -- indication in the entire record that, he claimed, supported his
belief that he must have given this correspondence to either defendant's counsel
prior to trial. (Id. at 127, R.R.I: 106-08, 113.) That notation consisted ofa single
entry in his personal notes from the first day of Mr. Allen's trial (which took place
after Mr. Mozee was already convicted), documenting that Mr. Jackson had
"show[n]" Mr. Allen's counsel, James Oatman, the "lmife and rest of physical
'
evidence." (Id. at 108.) This entry, Mr. Jackson maintained, was proof in his mind
that he had shown Mr. Oatman the documentary evidence to which the defense
was entitled under Brady and Giglio. He was cross-examined at length about the
well-understood difference between "physical evidence" and documentary
evidence, as well as the fact that he himself made a separate list of the documents
he showed or gave to Mr. Oatman in the Allen case, which notably did not include
the informants' letters. (Id. at 108-09, 113; R.R. II: 132.) Mr. Jackson further
testified that he presumed (though on this point, he had no notes to even arguably
confinn his assumption) that he did the same for Mr. Mozee's counsel. (R.R.II:
52-53.)
Finally, Mr. Jackson testified at length about what he maintained were his
consistent and wholly lawful practices when dealing with informants, under which,
he maintained, (1) he would "never" provide assistance to any informant with his
Applicani Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 11
or her own criminal matter until after the informant testified and lVIr. Jackson was
satisfied with the testimony, and (2) he would not have any specific discussion as
to actual or even "potential" benefits the State might provide to an informant until
after he or she testified. (See, e.g., R.RJ: 33-34, R.R.H: 42-43, 62-64, 86.) And
he claimed that he followed these practices with respect to each and every
informant who testified for him at the Mozee or Allen trials. (Id.; R.RJ: 36-37.)
At the conclusion of the hearing, both Applicants indicated that they would
amend their writs in response to new information supporting their Brady claims
that had been presented at the hearing (including through the trial prosecutor's own
testimony and notes), as well as additional issues and potential claims for relief
that emerged at the hearing. Counsel for both Applicants and the State informed
the district court that they anticipated the need for further testimony and/or
development of the record to address these issues. (R.II: 166-67.) The court
asked if the parties were ready to set another date "to continue the hearing."
Applicants' counsel indicated that they would prefer to confer with the State and
get back to the court with a proposed date, and the court agreed. (Id. at 167.)
On November 15, 2015, both Applicants filed Amended Applications for
Writs of Habeas Corpus.2 In their amended writs, they alleged that new
2
Due to an editing error in the original Amended Writ, which resulted in one of the
grounds for relief exceeding the maximum page limitations, Mr. Mozee filed a corrected copy of
his Amended Writ on November 18, 2015.
Applicant Stanley Mozee's Objections la Trial Court's Supplemental Findil1gs ofFact in Response to
Remand Order - Page 12
documentary evidence and testimony revealed that the t:dal prosecutor had
committed still further Brady violations with respect to other informant witnesses
as well as eyewitnesses, similar to (but separate from) the violations regarding
informants Smith and Hardeman that were the principal focus of the remand
hearing. (They also alleged, in the alternative, that if the trial prosecutor was
somehow correct in his assumption that he had disclosed any of what everyone
agreed was Brady material to defense counsel at trial, then trial counsel were
ineffective for failing to present that evidence to the jmy.)
On November I 0, 2015, without waiting for the parties to schedule
additional hearing dates, nor for the record of the October 26-27 hearing to be
prepared, Judge Hawthorne issued Findings of Fact on remand. The court did not
disturb or challenge Judge Stoltz's Findings of Fact and Conclusions of Law
regarding the significance or materiality of the informants' correspondence, or Mr.
Jackson's underlying discussions with these informants, under Brady. The court
also did not disturb (nor address) Applicants' claims that ADA Jackson had
knowingly failed to correct false testimony from both informants at trial, which
Judge Stoltz had found to be supported by the record and the applicable caselaw.
Instead, in an extremely cursory fashion, the comt made a general finding that Mr.
Jackson was "credible," and proceeded to enter the following Findings of Fact:
The court finds that Mr. Jackson testified that he did not violate Brady
v. Maryland in this cause.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 13
The court finds that l\/Ir. Jackson had no specific recall of handling the
jail house letters from the informants to defense counsel. The Court,
however, finds that while Mr. Jackson had no specific recall of
handing over the letters, his meticulous trial notes indicate that he
turned over all of the physical evidence to defense counsel. The Court
finds that Mr. Jackson was convinced that he would have included the
jailhouse letters as part of the physical evidence handed over to
defense counsel.
The Court finds that Mr. Jackson's testimony and his notes support
that he turned over the jailhouse letters to defense counsel.
Notably, the court entered identical Findings as to both Applicants, even
though, by the trial prosecutor's own admission, the "meticulous notes" relied
upon were prepared on the first day of the Allen trial -- which took place one
month after Mr. Mozee was convicted, and thus had nothing to do with any
discovery the prosecutor may have provided to Mr. Mozee.
These Objections follow.
STANDARD OF REVIEW
As "the ultimate fact-finder" on any writ application, this Court has made
clear that it will only defer to a trial court's findings if they are supported by the
record as a whole. See, e.g., Ex parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim.
App. 2014 ). That is so even where, as here, the trial court's findings are based
primarily on its evaluation of a witness's credibility or demeanor. See, e.g., id at
568-69 (declining to adopt district court's finding that complainant's recantation
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findillgs of Fact in Response to
Remmid Order - Page 14
was credible, in light of other record evidence undermining her hearing testimony);
see also Exparte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014) (same); Ex
Parte Flores, 387 S.W.3d 326 (Tex. Crim. App. 2012) (declining to defer to trial
court findings where court did not address or resolve significant factual issues in
dispute).
Here, there are even less compelling grounds for deference to Judge
Hawthorne's findings as to ADA Jackson's purported credibility, because Mr.
Jackson was not able to recall - and thus could not testify regarding -- whether he
actually complied with Brady. Instead, the only factual matters upon which Mr.
Jackson was able to testify were what he claimed were his standard practices when
using criminal informants (which Judge Hawthorne did not address), and his
personal belief that he must have followed those practices (and thus, complied with
Brady) in this case.
As for the substantive law governing Applicant's claims, this Court has
emphasized that he need not prove that the trial prosecutor deliberately
suppressed favorable evidence, since "the good or bad faith of the state is
irrelevant for due process purposes." Thomas v. State, 841S.W.2d399, 402 (Tex.
Crim. App. 1992) (en bane). Furthermore, where the record shows that
exculpatory evidence -including evidence impeaching the credibility of a State's
witness - was not disclosed, for whatever reason, an applicant need not prove that
Applicant Stanley Mozee's Objectio11s to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 15
disclosure would necessarily have resulted in his acquittal. Instead, he is
entitled to habeas relief if the State's failure to disclose Brady material
"undermine[s] confidence in the verdict." Id. at 405; see also Smith v. Cain, 132
S.Ct. 627 (2012}. And where a prosecutor fails to correct testimony that he
knew to be false or misleading, an even more generous standard applies, and
relief shall be granted if"the false testimony could ... in any reasonable likelihood
have affected the judgment of the jury." Giglio, 405 U.S. at 153-54 (quoting Napue
v. lllinois, 360 U.S. 264, 269 (1959)).
ARGUMENT
I. The District Court's Findings that the Brady Letters by
Informant Zane Smith Were Turned Over to Mr. Mozee Are
Not Supported by the Record Because- by the Trial
Prosecutor's Own Account- Any Disclosure of the Letters Did
Not Occur Until the Start of Co-Defendant Allen's Trial,
Which Was One·Month After Mr. Mozee Was Already
Convicted
Mr. Mozee's first Objection to the district court's findings is as simple
as it is unassailable. Judge Hawthorne's fmdings regarding Mr. Mozee are
clearly not supported by the record, because - in entering identical, verbatim
Findings as to both Applicants -- the only portion of the testimony and
exhibits that she relied upon to find that former ADA Jackson "tumed over
the jailhouse letters to defense counsel" have nothing whatsoever to do with
Mr. Mozee's trial nor any disclosures made to his lawyer. Instead, they
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact if• Response to
RemmidOrder-Page 16
relate solely to the prosecutor's recollection and notes regarding the Allen
trial, which occurred one month after Mr. Mozee was already convicted.
This is plain error even if this Court were to fully accept the trial
prosecutor's testimony as to what he believes he provided to the defense by
way of discovery in either Mozee's or Allen's case, including his own
interpretation of his file notes. This is because, by fonner ADA Jackson's
own admission, the "trial notes" cited by the district coUrt in its Findings
were prepared by Jackson on the first day of Mr. Allen's trial (August 28,
2000) and relate only to the discovery he gave to Mr. Allen's lawyer on that
date. By that time, Mr. Mozee was already convicted, as his trial
concluded on August 1, 2000. Thus, the trial prosecutor's notes and
alleged recollection as to the discovery he claims he provided - which was
the only evidence or testimony that the district court relied upon in finding
that the informant letters were disclosed to either counsel - reveal absolutely
nothing about whether Jackson had complied with his Brady obligations
towards Mr. Mozee.
As noted supra, Mr. Jackson candidly admitted that he had no
recollection of turning over any of the jailhouse informant letters to either
defendant's counsel. (R.R.I:95-96.) However, he conceded that all of the
letters in question were Brady/Giglio material, and were further subject to
Applicant Stanley Mozee's OfJjectio11s to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 17
mandatory disclosure under the express tenns of certain pretrial orders
entered in this case. (R.RJ:94, R.R.II:76.) He also admitted that there was
no indication anywhere in the Reporter's Record that either defense attorney
had the letters, or knew about them, when they cross-examined these
informants. (R.R.I:96.) Upon reviewing his own extensive trial file,
including his "meticulous notes," Mr. Jackson found just one entry that he
claimed was corroboration for his "belief' that he disclosed the letters to
either defense counsel. (R.R.II: 127, 136.) This was the notation dated
8/28/00, in which Jackson wrote - under the header "Show Oatman" -
"knife and rest of physical evidence." (R.R.I:l 13.) James Oatman was Mr.
Allen's lawyer, but did not represent Mr. Mozee.
According to Jackson, this "physical evidence" notation is "proof'
that on the first day of Mr. Allen's trial, he "show[ed] Oatman" not just
tangible items of property like the knife, the decedent's clothing, etc., but
also any and all documentary evidence - including all of the informants'
letters -that constituted Brady material. (R.R.I: 106-107, R.R.II:l27, 132.)
It was this notation, and Jackson's testimony regarding it, that was the only
factual basis for Judge Hawthorne's fmding that "he turned over the letters
to defense counsel," in identical Findings she entered for both Applicants.
Even assuming arguendo that this Court were to find that the record
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 18
supports Judge Hawthmne's conclusion that the informant letters were
included among the "physical evidence" made available to Mr. Allen
(which, for the reasons cogently stated in Mr. Allen's Objections, it does
not), by Mr. Jackson's own admission, the evidence relied upon by the
district court does not apply to Mr. Mozee's writ. For Mr. Jackson
admitted at the hearing that (1) the notation in question was made on the first
day at Allen's trial, and described discovery he provided at the Allen trial
only, (2) in his extensive search of his trial file, he found no corresponding
notes regarding any discovery he provided to Mr. Mozee 's lawyer - either at
the start of the Mozee trial, or at any other time. (R.R.I: 113; R.R.II: 52-53.)
Thus, not only did Mr. Jackson admit that he has no recollection of
providing these letters to Mr. Mozee, he also admitted that in Mr. Mozee's
case (unlike Allen's), he also does not have a single item of documentation
to support his assumption that he did so.
For these reasons, the district court clearly erred when she entered
Findings in Mr. Mozee's case that rest upon Mr. Jackson's "meticulous trial
notes." By Mr. Jackson's own admission, no such notes exist as to the
discovery provided to Mr. Mozee. For that reason alone, this Court should
reject the district court's Findings as to Mr. Mozee's writ.
This leaves only the well-supported Findings (agreed to by the State)
Applimnt Stanley Mozee's Objections to Trial Court's Supplementul Findings of Fact in Response to
RemandOrder-Page 19
by Judge Stolz: that the letters written by Zane Smith, and the substantive
discussions between Smith and the trial prosecutor referenced in this
correspondence, were not disclosed to Mr. Mozee. With all due respect to
Judge Hawthorne, it is troubling that the court made no mention of any
portion of the extensive record before her that applies to Mr. Mozee's case,
nor did she take into account the prosecutor's own admission that the very
portions of the record she relied upon actually do not apply to Mr. Mozee.
Combined with the fact that Judge Hawthorne entered her Findings without
waiting for the transcripts or exhibits from the writ hearing to be prepared,
Mr. Mozee respectfully submits that this Court should hesitate to defer to her
interpretation of the record.
II. The District Court Failed to Conside1· or Note that the Trial
Prosecutor Admitted That He Violated His Duty to Disclose the
Second (and Most Critical) of Two Brady Letters Written by the
Lone Informant Who Testified Against Mr. Mozee
As noted supra, unlike at Mr. Allen's trial (where the State relied on
six different informants who had pending or recently-adjudicated criminal
charges against them), only one jailhouse informant testified at Mr. Mozee's
trial: Zane Arlester Smith, a County Jail inmate who claimed that Mr. Mozee
made a full confession to the murder to him. Smith wrote two letters to the
State regarding his allegations and testimony against Mr. Mozee, both of
which were received by ADA Jackson at the time, and preserved in his trial
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response ta
Remand Order - Page 20
file. There is no dispute that Mr. Mozee's jury never heard about either of
the two letters, as no mention was made ofthern at Mr. Mozee's trial.
In the first letter, Smith revealed some (but not all) of the inculpatory
information he claimed to have against Mr. Mozee; and even though Smith
had yet to meet with a single State official regarding his proffered
information, he wrote that he was "willing to testify." This letter was
written on June 28, 2000- less than two weeks before Smith's highly
favorable plea and sentence were entered in his pending theft cases (on July
11, 2000), and one month before he testified for the State at Mr. Mozee's
3
trial. See Exh. 35. •
The second letter was written by Smith to ADA Jackson on August 2,
2000 - the day after Smith testified, and the same day Mr. Mozee was
convicted. It was in the second letter that Smith referenced earlier
discussions he had with the prosecutor about assistance he believed the
prosecutor would provide regarding his own conviction and sentence after
he testified against Mr. Mozee. Specifically, Smith sought confirmation
that the prosecutor would, in fact, deliver on what Smith believed had been
promised to him before he testified. See Exh. 41 ("what I'd like to know is:
Will you still be able to intercede on my behalf as you said[?]") (emphasis
3
Cites to exhibits in these Objections refer to the exhibits admitted into evidence at the
writ hearing held on October 26-27, 2015.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 21
supplied); see also Joint MOL at 45-50 (discussing conflict with testimony,
in which Smith claimed he had no prior deal, agreement, or understanding
with the prosecutor regarding his own sentence, and was only "hoping" that
the prosecutor ''may" agree to assist him "at some point down the road").
Whether or not Smith's letter accurately reflected what Mr. Jackson
promised to do for Smith in their pretrial meetings, Mr. Jackson nonetheless
agreed that this second letter (like the first) was clearly Brady/Giglio
material as to Smith. (R.R.II:76.) Yet he admitted that he did not disclose
it to Mr. Mozee's lawyer. Specifically, Mr. Jackson testified that while he
believed he disclosed this letter to Mr. Allen's lawyer (because it was
written several weeks before the Allen trial), he did not give the letter to Mr.
Mozee's lawyer "at any point," since Smith did not write it until the day
after the Mozee verdict. See R.R.II: 68-69.
However, when asked about his continuing obligations under Brady,
Mr. Jackson conceded that he would, at the very least, have a duty to
disclose any such correspondence sent to him within the thirty-day period
during which Mr. Mozee could still file a motion for a new trial under Tex.
Rule App. Proc. 21. (Id at 106-07.) By this time, Mr. Jackson had
already admitted that there was "no question" he had not notified Mr.
Mozee's lawyer about Smith's second letter (Id. at 69), and he did not retract
Applicant Stanley Mozee's Objections to Trial Court's Supplemelltal Findings of Fact in Response to
Remand Order - Page 22
that testimony. Yet Judge Hawthorne made no mention of these significant
concessions as to IVlr. Mozee when she entered identical findings in both
Applicants' cases.
It has never been disputed that the second letter from Smith - the only
testifying informant in Mr. Mozee' s case - is significant Brady material. (Id.
at 76.) It reveals that Smith immediately sought to capitalize on what he
believed was the prosecutor's promise to "intercede on [his] behalf' after he
testified against Mr. Mozee (Id. at 67.). The significance of the letter was
only further confinned at the writ hearing, when ADA Jackson was
questioned about its contents and the pretrial communications that preceded
it. In direct contradiction to what Smith asserts in his letter, Mr. Jackson
maintained that not only did he not promise Smith that he would "intercede
on [his] behalf," but insisted that he would "never" discuss even "potential"
assistance in securing a sentence reduction with Smith, or any other
jailhouse informant, until after the fact:
Q: So you are saying you would never tell somebody you would
get them a - potentially get them a reduction in their sentence
after they've testified?
A: I would never tell them that ahead of time, that's correct.
R.R.II: 63.
Notably, Judge Hawthorne did not disturb Judge Stoltz's earlier
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findi11gs of Fact in Response to
Remand Orde,. - Page 23
Finding of Pact and Law (which was also agreed to by the State) tha:c if
Smith's correspondence was not disclosed, it would be a Brady violation
requiring habeas relief for Mr. Mozee. Instead, she simply found (without
citation to the record) that Mr. Jackson "turned over the letters to defense
counsel" - without, apparently, recalling that he had admitted precisely the
opposite when he testified about Mr. Mozee's case.
For this reason alone, this Court should decline to adopt Judge
Hawthorne's findings as to Mr. Mozee, as unsupported (and, indeed, directly
contradicted) by the record. Instead, it should adopt the previous finding
by Judge Stoltz that the letter was not disclosed - a conclusion that has only
been strengthened by the former prosecutor's own testimony on remand -
and grant relief on that basis alone.
III. The Record Also Establishes That ADA Jackson Did Not
Disclose to Mr. Mozee's Counsel the First of the Two Brady
Letters Sent by Informant Smith, and Appears to Have
Misled Counsel as to the Timing and Nature of the State's
Pretrial Contacts With Smith
In focusing exclusively on the file notations pertaining to what ADA
Jackson believed he provided by way of discovery on the first day of Mr.
Allen's trial, the district court also neglected to consider the substantial
record evidence that Mr. Jackson did not disclose to Mr. Mozee's counsel
the first of the two letters sent to him by informant Smith, dated June 28,
Applicant Stanley Mozee 's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 24
2000 (Exhibit 3 5 at the writ hearing), The record evidence clearly shows
that Exhibit 3 5 was JJso not disclosed to l\1r. Mozee. That conclusion is
supported, inter alia, by the fact that Mr. Jackson had no notes even
arguably documenting this alleged disclosure, whereas Mr. Mozee's counsel,
Matt Fry, prepared his own detailed, contemporaneous notes of his
discussions with ADA Jackson regarding Smith at the start of Mr. Mozee's
trial on July 31, 2000 (the date that ADA Jackson alleges he would have
disclosed the letter to Mr. Fry). Defense counsel's notes make no mention
of the letter, and when considered alongside Smith's testimony, it is clear
that Mr. Fry was wholly unaware of the letter's contents.
Equally troubling (though not necessary for Brady relief, given the
substantial Brady evidence already presented), the record also supports an
inference that Mr. Jackson withheld this letter from Mr. Fry after misleading
the defense about the timing and nature of his pretrial communications with
Smith. This information was critical to Mr. Mozee's defense, because had
it been disclosed, the jurors would surely have viewed with great skepticism
Smith's claim that his highly favorable theft plea on July 11, 2000 had no
connection whatsoever to his written offer to testify against Mr. Mozee that
he made just two weeks earlier.
Applicant Sta11ley Mozee's Objections to Trial Coart's Sapplemental Findings ofFact in Response to
Remand Order - Page 25
A. Contemporaneous Record From Mozee Trial Provides No
Evidence that the Letter Was Disclosed, and Substantial
Evidence That it Was Not
Exhibit 35 (the "first Smith letter") was dated June 28, 2000, and was
sent by Smith from the County Jail to "whom it may concern" c/o the
Clerk's Office. It was forwarded to ADA Jackson, who placed it in his
original trial file. (R.RII:70-71 ). It read as follows:
To Whom it may Concern:
My nam~ is Zane Smith and I am writing this statement in reguards
[sic] to a homicide that happened several months ago. I am a relative
of Stanley Orson Mozee and he is being charged with the Homicide
case of a Dallas Preacher. I have spoken to Stanley Mozee on several
occassions [sic] where he told me that he was involved in the
Homicide. I am willing to testify to what Mr. Mozee stated to me.
The Preacher who was killed his name is Jesse Borns Jr.
Age: 70 yr. old.
Sincerely,
Zane Smith
Unlike the August 2, 2000 letter from Smith (Exh. 41) or the letters
from Lone! Hardeman in the Allen case (Exhs. 12-13, and 18-20), this June
281h letter does not discuss the specific benefits Smith was expecting to
receive in exchange for being "willing to testify." However, ADA Jackson
agreed at the hearing that he was obligated to disclose this correspondence
and any substantive discussions with Smith about his testimony that may
have followed, both under Brady-Giglio, as well as pursuant to the clear
Applicant Stanley Molf!e's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 26
terms of an Omnibus discovery order entered weeks earlier in the Mozee
case.
The pretrial discovery order is significant, because it supports both a
finding of nondisclosure and confirms the resulting prejudice to Mr. Mozee.
Mr. Mozee's counsel filed a comprehensive Omnibus Motion on November
30, 1999 - more than seven months before his July 31, 2000 trial began.
The motion was granted by Judge Dean on June 26, 2000 (over a month
before trial, and just before Smith wrote his first letter). In the Motion and
Order, Mr. Mozee's counsel sought- and was granted- not only
constitutionally required Brady disclosures, but also timely disclosure of
precisely the s01t of basic background information necessary to give him a
fair opportunity to investigate and prepare to cross-examine jailhouse
informant witnesses like Smith. This included the witnesses' prior written
statements; information as to any criminal charges they may have been
facing; and information regarding any assistance with those charges that the
witness may expect to receive from the State. See R.RI: 56-58; Exh. 8
(State v. Mozee, Omnibus Motion and Order, at Pt. 9) (requiring disclosure
of"any and all written statements made or adopted by a witness who
testifies"); Id. at Pt. 12 (State "order[ed] the State to produce, prior to trial,
all criminal records of witnesses that they intend to call to the stand in the
Appli;;ant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 2 7
trial of this case, and fhrther, to determine and disclose any pending charges
that the prospective witnesses may have ... [and] whether [the State] has
made, promised, or implied any promises, benefits, or concessions to any
prospective witness") (emphasis supplied).
Thus, the record is clear that ADA Jackson was obliged to disclose
not just Smith's June 28, 2000 correspondence, but also to provide, "prior to
trial," a copy of Smith's criminal history, as well as information regarding
his pending charges and his discussions with the State about
potential/promised benefits to Smith.
The record demonstrates, however, that none of this information was
provided to the defense before Smith testified. As with the other informant
letters, Mr. Jackson agreed that he was obligated to disclose this letter to Mr.
Fry. (R.R.II: 52.) He also admitted that had no recollection of doing so, but
only "believe[s]" he did. (Id.) He further testified that it would have been
his practice to make this disclosure no later than on the first morning of trial
- which he would have done by pulling the letter out of his own file and
showing it to Mr. Fry, and giving a copy to counsel upon request. (Id.) ("I
would have done the same thing with [Fry] that I did with Oatman").
Unlike in the Allen case, however, the State's file does not contain a
single notation regarding any discovery (either "physical evidence" or
Applicant Stanley Moz.ee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 28
documentaPJ evidence) that Mr. Jackson allegedly showed or gave to Mr.
Fry at the start of trial. . Mr. Jackson searched his file for notes that may
have confi11ned his assumption that he gave Mr. Fry the letter, yet found
none. See RR:53.
By contrast, Mr. Mozee's attorney did make a contemporaneous,
written record of the limited information that Mr. Jackson provided to him
regarding Smith on the first day of trial - which was when Mr. Jackson first
disclosed Smith's identity and allegations to the defense. Mr. Fry's file
notation reads:
7/31/00
Prior to voir dire Rick Jackson tells me that in the last few days he has
been contacted by a Zane Arlester Smith BD 04/19/65. An interview
was done with Smith. Smith is D[efendant]'s cousin. He is in jail. He
says he has talked to Din jail+ that D tells him just what he told Inv.
Berry. He also says that D told him he was going to play crazy to get
off.
I tell D about it. He continues to want a trial. Will not consider
helping the state on the Allen case. Rick Jackson continues to be
willing to use D as a witness.
Exh. 38 (emphasis supplied).
This notation clearly makes no mention of being shown or given a
copy of Smith's June 28, 2000 letter. Instead, it accepts ADA Jackson's
(inaccurate) representation that he was frrst "contacted" by Smith only "in
the last few days" (i.e., at the end of July).
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 29
Similarly, when ADA Jackson called Smith 'if\ras c.alled to testify at
lVIr. Mozee's trial the following day, he repeatedly elicited testimony from
Smith that they had not even spoken about this case until after his own July
11th plea and sentence were fmal. See, e.g., Mozee T.T. at 119 (Q: "Now,
Mr. Smith, what you're telling me, you told me that after you were already
sentenced; is that right?" A: "Yes, sir."); Id. at 120-21 (Q: "Are you lying to
the jury hoping that I might help you?" A: "Oh, no, sir. No, sir, I'm not."
Q;. Okay. It's your testimony, you told me that knowing that your sentence
was already over and that I may or may not help you out in the future?" A:
"Yes, sir.") (emphasis supplied). Moreover, when Mr. Fry attempted to
cross-examine Smith about his contact with the State and when it occurred
in relation to his plea, he was clearly unaware of the June date on which
Smith had first made his allegations. See id. at 1212 (Q: "And your
testimony is you were already sentenced to [365 days in the State Jail]
before you ever got involved in this situation; did I understand you to say
that?" A: Yes, sir.") (emphasis supplied).
The only reasonable conclusion from this record is that ADA Jackson
did not provide Mr. Fry with Smith's June 28, 2000 letter. For it is, to say
the least, difficult to imagine that if Mr. Fry had been shown this letter prior
to voir dire, he would not have noted it in his detailed entry regarding what
Applica11t Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 3()
he v1as told about Smith on that same date. 4
This is so for several reasons. First, Smith was the only informant
called by the State at Mr. Mozee's trial, and Mr. Jackson waited to reveal his
identity and proffered testimony until the first day of trial. As noted earlier,
Mr. Fry had filed a comprehensive pretrial motion more than seven months
earlier, on November 30, 1999, seeking discovery regarding any criminal
informant witnesses - including prior written statements, their criminal
histories, and information about pending charges and potential benefits from
the State. Certainly, then, Mr. Fry would have had every reason to preserve
a claim of a discovery/Braqy violation and the resulting prejudice to his
client in a capital murder case, by making a complete record of whatever
information he was being given, at the 11th hour, about the State's only
informant witness - including, at the very least, a notation that the
prosecutor had shown or given him Smith's letter, had Mr. Jackson actually
done so.
Second, had Mr. Fry seen the letter, he would have immediately
noticed the obvious discrepancy between the date of Smith's letter (nearly
five weeks before) and Mr. Jackson's representation that he was only
4
Alternatively, as noted in Mr. Mozee's Amended Writ, if by some chance Mr. Fry was
shown or given this letter and did not make use of it in his cross-examination of Smith, his
performance was ineffective.
Applicant Stanley Mozee's ONeclions to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 31
contacted by Smith "in the last few days." Finally, if he had seen the letter
dated nearly five weeks earlier, rvrr. Fry would have used it to correct the
false (or, at best, highly misleading) impression left by Smith's trial
testimony that there were no communications with the State about his
potential testimony until after his July 11th plea and sentence were "already
over."
Thus, not only did Judge Hawthmne err in entering Findings adverse
to Mr. Mozee's Brady claim by relying solely on the prosecutor's notes from
Mr. Allen's trial, which occurred several weeks later. She also failed to
consider numerous aspects of the written record from the Mozee trial that
directly contradict Mr. Jackson's present claim that he disclosed this letter to
the defense at the start of the Mozee trial.
B. Additional Material in ADA Jackson's Trial File Reveals That
He Was Aware of Smith's Claim that Mozee Had Confessed to
Him and His Offer to Testify Weeks Before Mr. Mozee's Trial
Began, Yet Falsely Stated Otherwise to Defense Counsel
Prior to the writ hearing before Judge Hawthorne, the District
Attorney made ADA Jackson's original trial file available to undersigned
counsel for inspection Gust as ADA Jackson was given the opportunity to go
through the file before testifying). During that review, counsel discovered
additional material in Mr. Jackson's trial file that further demonstrates the
Applicant Stanley Mozee 's ONections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 32
prejudice caused by his failure to disclose Smith's first letter. The contents
of this file are compelling evidence that l\!fr. Jackson affirmatively misled
defense counsel when he claimed, at the start of trial, that he only became
aware of Smith's allegations "a few days" before trial began.
The document in question was entered at the writ hearing as Exhibit
36. See R.R.II: 36-37. It is an original printout of a Dallas County
criminal history check on Zane Smith dated July 7, 2000, and was located in
l\!fr. Jackson's own trial file for this case, in a subfolder he had labeled:
"Zane Smith." (Id. at 65-66.)
When shown this document, l\!fr. Jackson conceded that (1) either he
or someone acting at his direction ran Smith's criminal history while
preparing for trial in the Mozee case, (2) the criminal history search was
performed on or before July 7, 2000 (as he explained, it could have been
done even earlier, and not printed out until July ih), and thus, (3) on or
before July 7, 2000-four days before Smith's own highly favorable plea
was entered -- ADA Jackson was personally "aware of the letter" that Smith
had sent on June 28, 2000, in which he claimed that JVfr. Mozee had
confessed to him and offered to testify for the State. (R.R.Il:37-39, 49.)5
5
Mr. Jackson admitted that Smith was a significant witness against Mr. Mozee, whom he
would have wanted to interview as soon as possible after receiving Smith's June 28th letter.
R.R.II:35. When asked why he told Mr. Mozee's lawyer on Jnly 31st that he had only spoken
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fltet in Response to
Remand Order - Page 33
The discovery of this document imd the above concessions by l\l!r.
Jackson appear to foreclose the only innocent explanation for why he waited
so long to inform the defense about Smith's testimony: that Smith's June
28 1h letter took several weeks to make its way from the clerk's office into
Mr. Jackson's hands. For Mr. Jackson has now admitted that he was
personally aware that Smith claimed that Mr. Mozee confessed to him, and
was "willing to testify" about that allegation, at least three weeks before Mr.
Mozee's trial. Yet he did not disclose this information (nor Smith's
criminal history, nor the pending theft charges that were resolved by plea on
July 11th - all of which were subject to mandatory pretrial disclosure per
Judge Dean's order) until July 31 '1, on the morning of trial. Even more
troubling, the record contains substantial evidence that Mr. Jackson was less
than truthful with Mr. Fry when he explained the reason for the late notice,
i.e., by assuring Mr. Fry that he was only "contacted" by Smith "a few days"
earlier.
Thus, regardless of whether this Court finds that Mr. Jackson himself
played any role in securing Smith's highly favorable plea and sentence,
which was entered days after Mr. Jackson learned of his availability as a
with Smith "in the last few days," he speculated that he might have been busy with other trkils at
that time. Id at 50-51. Yet the State's records showed that the Mozee and Allen trials were the
only ones that entire year in which Mr. Jackson was lead prosecutor; furthermore, between May
and August, he only helped pick juries in two other cases. Id. at 138-42.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 34
wi1ness and ran his criminal history, the nondisclosure of this letter is
significant. It clearly "undermine[s] confidence in the outcome" ofivfr.
Mozee's trial, see Smith v. Cain, supra, because (1) the State provided
defense counsel with belated and inaccurate information about Smith's offer
to testify, (2) deprived counsel of the timely pretrial disclosures (Smith's
criminal history, current or recently-pending cases, and pretrial discussions
with the State about actual or implied benefits) to which the defense was
entitled under Brady and Judge Dean's written order, and (3) prejudiced the
defense's ability to impeach Smith's false testimony as to the actual
sequence of these events, i.e., is claim that he did not "get involved" in Mr.
Mozee' s prosecution until he was "already sentenced" in his own case.
IV. The Record Demonstrates that the Trial Prosecutor Went to
Extraordinary Lengths to Reward Smith After He Testified
By Procuring iu1 Illegal Judgment and Reduced Sentence for
Him, Further Impeaching His Representation to Mr.
Mozee's Jury that He Had "No Deal" With Smith
Mr. Mozee's allegation that Zane Smith testified falsely at his trial (as
well as at Allen's) when he claimed to have no deal, agreement, or
understanding with the State regarding a potential sentence reduction is not
only supported by Smith's undisclosed letter to ADA Jackson, seeking
confirmation that the prosecutor would "intercede on [Smith's] behalf' as he
had promised. It is also demonstrated by the evidence developed at the writ
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 35
hearing that ADA Jackson went to extraordinary lengths to deliver on that
prollllse.
Specifically, Mr. Jackson's effmis resulted in the entry of a highly
favorable new judgment and resentencing in Smith's previously-pled theft
case, leading to Smith's immediate release from custody -- even though the
district judge from whom Mr. Jackson unwittingly secured this new
judgment had no jurisdiction to grant this relief. Moreover, these were
precisely the so1i of actions that Mr. Jackson swore at the hearing he would
"never" take on an informant's behalf (testimony he gave before being
confronted with the original record from Smith's case fifteen years ago).
The logical and inescapable inference from this evidence is that Mr.
Jackson went to such remarkable lengths for Smith in order to deliver on
precisely the sort of "deal" he now denies making. . For these reasons, this
Court should view with great skepticism Mr. Jackson's professed confidence
that he complied with Brady at Mr. Mozee's trial.
A. Testimony Regarding Alleged Informant Practices
At the writ hearing, Mr. Jackson testified at length about the practices
he purportedly followed in every case he handled when negotiating with
jailhouse informants or other witnesses with pending criminal charges.
First, Mr. Jackson testified that he "never" told any informant that he
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 36
would provide any kind of benefit, or even discuss what sorts of things he
"might" or even "potentially" do for the witness, before the witness testified.
(See, e.g., R.R.!: 33-34; R.R.U:64, 86). He testified that with respect to
Zane Smith, this meant that (despite Smith's letter stating otherwise) he
would never have discussed even the possibility of a future sentence
reduction with Smith, until after Smith had testified in the Mozee and Allen
trials. (Id. at 62-63.) Second, Mr. Jackson stated that if the informant's
case was not in his own court, he did not get involved in providing these
benefits, even after the informant testified. He stated that decision
regarding post-testimony benefits would be solely up to the prosecutor
handling the informant's case; Mr. Jackson would "never just go take over
the case." (Id. at 64.) Instead, the most that he would do is speak to the
other prosecutor and advise him or her that the infonnant had cooperated
and ask for some consideration. (Id.; see also R.I.: 37: "I would go to
whomever was the lead prosecutor on that case, on the witness' case, and
say, look, this person came in, cooperated, testified for us, thought he told
the t1uth, you know, I don't know whatever your recommendation is, if you
can give them the benefit of that cooperation, that would be great.") · He
believed it was important, in his words, to "reward the behavior" of
testifying informants like Smith. (R.R.II: 84, 85, 89.) But he maintained
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 37
that the most he would do was "talk to the other prosecutor about, you know,
what might be fair based upon their knowledge of the [informant's] case,"
since he himself was not "intimately familiar with what the facts are" and
thus should not decide the benefit the infonnant was to receive, if any.
(R.R.I: 37; see also id at 145 ("because I wouldn't have known the strength
of their case, I wouldn't have got involved ... I would have just told them of
the person's cooperation.")
Third, Mr. Jackson testified that not only did he make clear to all of
his infonnants and their lawyers that he would not even discuss any specific
benefit they might receive in the future, but that sometimes - because of the
infonnant's circumstances - it might tmn out that he ultimately could do
nothing for the witness, and that was a risk the informant had to take. See,
e.g., R.R.I:34 ("there have been cases where a witness has testified and there
wasn't anything I could do for them and they ... didn't get the benefit of
their cooperation. There was nothing that I could change").
Mr. Jackson did not remember anything about Smith or his
discussions with him regarding this case. (R.R. II: 63, 77). Other than
Smith's letters, the State's file contains no notes or other record of what, if
anything, they may have discussed about potential benefits in exchange for
Smith's cooperation. However, he was confident that he followed his
Applicant Stanley Mozee's Objectio11s lo Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 38
standard practices when dealing with Smith, before and after trial.
Specifically, Mr. Jackson was certain that he "did not agree prior to [Smith]
testifying that I would do anything for him. (R.RJI:75.) Nor did he even
tell Smith that he "might" be able to get him a reduced sentence after he
testified. (R.R.II: 86). As with other informants, Mr. Jackson stated that he
would have followed his "normal practice" and rewarded Smith's
cooperation only by speaking with the prosecutor handling Smith's case
after he testified. (Id. at 64) (Q: "[Y]ou would go to the prosecutor on
Smith's case and tell him he helped you out, it's up to them whether they're
going to do anything for him.") (A: "Correct.").
In addition, Mr. Jackson agreed that, because Smith had already pied
guilty and been sentenced in his own case before he testified in the Mozee or
Allen trials (with his plea entered in between the time he wrote to the State
and when Mr. Mozee's trial began), he likely had little or no incentive to
proceed to testify without an "offer to cut his sentence for him" - yet Mr.
Jackson maintained he would never have made such an offer, nor even
discussed it as a "potentialO" outcome. (Id at 62-63; see also id at 86 (Q:
You never said I might get you a sentence reduction after you testify?") (A: I
never said that.")).
Bo Benefits Given to Zane Smith
Applica11t Stanley Mozee's Objections to Trilli Court's Supplemental Findings of Fact in Response to
Remaml Order - Page 39
The record indicates that Mr. Jackson effectively followed none of his
self-described rules for dealing with informants when it came to Smith's
testimony and the actions Mr. Jackson took on Smith's behalf in the wake of
that testimony.
First, it is undisputed that Smith wrote to Mr. Jackson immediately
after he testified against Mr. Mozee, directly referencing the prosecutor's
earlier promise to "intercede on my behalf as you said" (Exh. 41 ). Even
assuming Jackson had not made a specific promise as to what assistance he
would provide Smith, the letter clearly references at least some prior
conversations between Mr. Jackson and Smith about a potential sentence
reduction, which Mr. Jackson admitted was the only benefit the State could
provide him at that point. Yet this was exactly the sort of pre-testimony
discussion that Mr. Jackson maintained he "never" engaged in with any
informant, including Smith.
Second, and more fundamentally, because of the timing of the two
capital murder trials in which Smith testified for Mr. Jackson, it tmned out
that there was, in fact, "nothing [the State] could do" to reward his
cooperation - at least, not lawfully. This is because, as Mr. Jackson
acknowledged, the only way to reduce Smith's sentence after his plea was
for the State to work with Smith's counsel to do an agreed motion for a new
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 40
triaL (Id. at 60-61.) However, Mr. Allen's trial did not conclude until
September 1, 2000. (See Exh. 40 and R.R. II: 60-61.) By that thne, 52
days had passed since the entry of Smith's judgment and sentence - meaning
that the limited 30 day window in which Smith could bring such a motion
had expired. (Exh. 31; R.RJI: 83-84.). Mr. Jackson did not dispute that by
the time the Allen trial ended, the district court lacked jurisdiction to grant
Smith a new trial or otherwise reduce his sentence. (Id. at 83.) Thus,
Smith's was precisely the sort of situation Mr. Jackson had earlier described
as a potential outcome of his "no deal" practices when it came to infmmants
- that is, one in which he would be forced to tell Smith that there was
"nothing [the State] could do" to assist him after he testified, because it was
simply "too late" to reduce his sentence. (Id. at 86).
Yet this is not what Mr. Jackson said or did. Rather than speaking
with the ADA who had prosecuted Smith, learning that the jurisdictional
window to reduce his sentence had already expired, and simply informing
Smith of that fact, Mr. Jackson took matters into his own hands. He
personally worked with Smith's counsel to prepare and file an out-of-time
Agreed Motion for a New Trial. (Exh. 42), which Mr. Jackson (not Smith's
6
own prosecutor) signed on behalf of the State.
6
Mr. Jackson was asked to explain how hls appearance on this Agreed Motion could possibly be
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
RemandOrder-Page 41
JV!.r. Jackson does not have any present recollection as to how the
parties presented the motion to the district judge in Smith's theft case (the
Hon. Karen Greene, who is now deceased) (R.R.U: 87). Nor does he recall
whether he made Judge Greene aware of the fact that this was an out-of-time
motion that she had no jurisdiction to grant. (Id.) He had no explanation as
to why Judge Greene would have agreed to grant an out-of-time motion if
informed of this fact, particularly since Mr. Jackson knew her to be "a
stickler for the law"; his only explanation was that "she missed it somehow."
(Id. at 88.). Mr. Jackson also could not recall any other case in his career in
which he had asked a judge to ignore jurisdictional constraints in order to
reward an informant (although he maintained that he "didn't invent" this
remedy and that he believed other prosecutors had done it in the past). (Id. at
90).
The benefit to Smith from Mr. Jackson's extraordinary action on his
behalf was substantial. Indeed, Smith received the maximum possible
sentence reduction the State could provide - a recalculation of his 365-day
State Jail sentence to 244 days in the County Jail, which he had already
served. Smith had originally faced up to 20 years in the Texas Department
reconciled with his earlier testimony that he would never "go take over a case" assigned to another prosecutor, and
that even a motion for a new trial would only be done "at my behest" in the other prosecutor's discretion. (R.R.!: 37;
R.R.11:77-79.) He had no answer except that Smith's was an "already disposed of case" in which he would spare
the other prosecutor the work of providing the benefit, and conceded that his earlier testimony as to his standard
practices could be fairly characterized as "true, except sometimes it's not." (Id at 79-80.)
Applicant Sta11ley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order· Page 42
of Con-ections if convicted in his enhanced felony theft cases, and his case
file jacket reflects thsJ his initial plea offer was for five years incarceration at
TDC. (Id. at 144-45.) Within weeks of testifying for Mr. Jackson, however,
Smith was freed directly from the County Jail after serving less than nine
months at County, without a day of State Jail time. (RR.II: 91, 142-43).
In sum, had Mr. Jackson followed what he claimed to were his usual.
practices, he would have done the following: (1) had no discussions with
Smith about any actual or potential benefits before he testified; (2) warned
him and his lawyer that the State might not be able to do anything at all to
benefit him after he testified, because of his existing plea and sentence; (3)
after both the Mozee and Allen trials were over, gone and spoken with the
prosecutor who handled Smith's theft case on his behalf and asked for some
consideration; (4) learned that Smith's time to file a motion for a new trial -
the only way to lawfully reduce his sentence - had already expired; and (5)
gone back to Smith and said, "you know, Zane, there's nothing I can do, it's
too late." (R.II: 86). Instead, after receiving a letter from Smith confim1ing
their earlier agreement to "intercede on my behalf as you said," Mr. Jackson
failed to disclose that letter to either defense counsel, then went to
extraordinary -- and apparently illegal -- lengths to reward Smith for his
cooperation.
Applicant Stanley Mozee's Objectio11~' to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 43
This record powerfully impeaches lVIr, Jackson's claims -- to ML
Mozee's jury (Tr. at 119), and in his testimony below -- that he had "no
deal" of any kind with Smith. It is simply inconceivable that Mr. Jackson
would have personally intervened in Smith's theft case, and presented the
district court with an out-of-time sentence reduction that it had no
jurisdiction to grant, if he did not consider himself bound by an earlier
commitment he had made to reduce Smith's sentence, whether express or
implied. That he wanted to generously reward Smith for his cooperation
was not surprising, since Smith was the was the only infonnant who testified
for him at both capital murder trials. But Mr. Jackson was required to fully
disclose these anticipated benefits to defense counsel, and to refrain from
presenting false testimony by Smith about this issue. Because the record as
a whole shows otherwise; this Court should vacate Mr. Mozee's conviction.
V. The Record Developed Below Also Contains Substantial
Evidence of Other Violations by ADA Jackson Relating to
Jailhouse Informants in This Case That the District Court
Did Not Consider, but Which Strongly Support Mr. Mozee's
Principal Brady Claim
As discussed supra, ADA Jackson candidly admitted that he has no
present recollection of disclosing either of infonnant Smith's two letters to
Mr. Mozee's counsel, Matt Fry; that he did not, in fact, disclose the second
letter to Mr. Fry because he received it after trial, even though he was
Applicant Stanley Mozee's Objections to Trial Cou1"t's Supplemental Findings of Fact i11 Response to
Remand Order- Page 44
obligated to do so; and that he also has no file notes that support his personal
belief that he disclosed the first letter (Exh. 35) to Iv'IJ. Fry. He also
maintained at the writ hearing that he played no role in helping Smith secure
his highly favorable plea and sentence three weeks before he testified; had "no
deal" whatsoever with Smith as to what the State might do for him after he
testified; and did not even tell Smith he would "potentially" help him with a
sentence reduction down the road.
In essence, then, Mr. Jackson's defense to the overwhelming
circumstantial evidence on record that he did not disclose either of Smith's
letters, nor the underlying discussions/benefits that are reflected in them, is
that he is the sort of prosecutor who followed strict iules when it came to
informants, and would never commit Brady violations of this sort. In other
words, because it was his personal practice to make such disclosures in a
timely fashion and otherwise comply with Brady, he must have faithfully
honored those obligations when it came to Smith.
Yet the record below contains substantial evidence that Mr. Jackson
clearly did not comply with Brady (regarding his disclosure obligations) and
Napue (regarding the duty to correct false statements or testimony) with
regard to numerous witnesses in both the Mozee and Allen trials.
Specifically, and as discussed below, the record contains new documentary
Applica11t Stanley Mozee's Ohjeclions to Trial Court's Supplemental Findings of Fact in Response to
Remand Order· P11ge 45
evidence that Mr. Jackson (1) was personally aware that the lead detective
working with him on the Mozee and Allen cases had assisted at least two
infonnants who testified against Mr. Allen with pending probation violations
before they testified, yet failed to disclose these benefits and represented
otherwise to the jury; and (2) failed to disclose that several eyewitnesses who
had seen the suspect(s) in possession of the murder victim's stolen property
had not identified either defendant, and/or had recanted their earlier
identifications of Mr. Allen as one of the suspects. (This latter violation was
just as harmful to Mr. Mozee as to Mr. Allen, because ADA Jackson knew of
this exculpatory eyewitness evidence yet still presented false testimony from
Det. Berry regarding the alleged identifications of Allen, and cited it as
"corroboration" for Mr. Mozee's false confession.)
Even though some of these violations occurred at Mr. Allen's trial, they
go directly to whether Mr. Jackson made all of the required Brady disclosures
about Zane Smith, and did not present false testimony from Smith, in Mr.
Mozee's case. Put another way, since Mi:. Jackson has no recollection or
record of making these disclosures to Mr. Mozee's counsel, and admits that
his defense to the present Brady allegations rests solely on what he claims
were his standard practices and integrity as a prosecutor, this Court should
Applicant Stanley Mozee 's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 46
certainly consider any evidence that Mr. Jackson violated Brady in other
respects when prosecuting Mr. Mozee and/or his co-defendant.
Both Applicants amended their writs after the hearing to specifically
plead these claims based upon the evidence presented to date, and all pmiies
are continuing to investigate these additional Brady issues. Nonetheless, Mr.
Jackson's answers to date, and the reports and notes in his own file, show that
he repeatedly violated Brady and Napue in the course of these prosecutions.
The district court erred when she summarily found that Mr. Jackson
was "credible" in his personal belief that he turned over the Smith and
Hardeman letters, without addressing any of this additional Brady evidence,
nor even giving the pmiies the additional hearing dates they had requested to
further develop those facts. The evidence of these additional violations is
summarized below, so that this Court may duly consider its significance.
A. The Trial Prosecutor Failed to Disclose Direct Assistance
Provided to Two Testifying Informants Facing Probation
Violations, Despite Claiming That He Would "Never" Assist An
Informant Before Trial and Would Disclose that Information If
the State Had Done So
As noted above, Mr. Jackson did not remember any of his interactions
with Zane Smith before he testified, nor when they first met to discuss Smith's
allegations. But he was certain that he did not assist Smith in securing his
highly favorable plea and sentence on July 11th (three weeks before the Mozee
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of F11ct in Response to
Remand Order - Page 47
trial)-- because, I\1.:r. Jackson testified, he "never" provided any pre-testimony
benefits to an informant, and this would have applied to Smith. See, e.g.,
R.R.II: 43 ("I can tell you for sure that I didn't go and intervene on anyone's
behalf before they would have testified .... [b]ecause I never did it.") He
also maintained that he never directed or authorized anyone working for him,
including "a detective or an investigator,'' to provide a witness with any
assistance whatsoever before he or she testified. (R.R.I: 66.) He clarified that
he would authorize a detective to do something innocuous like "maybe give
[the witness] a ride to the courthouse or something,'' but certainly not to assist
with a pending criminal case. (Id.)
ADA Jackson presumed that he followed these practices in the Mozee
and Allen cases. IfDet. Berry had provided a witness in the Mozee or Allen
cases with pre-testimony assistance in a pending criminal matter, it would
have been without Mr. Jackson's knowledge and not at his behest. (Id. at
66-67.) He readily agreed that ifDet. Berry had done so, that would be
Brady/Giglio material. (Id. at 130, 133, 140.) And if not disclosed to the
defense, it would be a Brady/Giglio violation "attributable to the
prosecution," whether or not Det. Berry told Mr. Jackson about what he had
done. (Id. at 130, 140.) He claimed it would greatly "surprise" him to learn
that Det. Berry had helped any witness in these cases before they testified, and
Applicant Stanley Mozee 's Objections to T/'i(ll Court's Sapplemen/(ll Findings of Fact in Response to
Remand Order - P11ge 48
was certain that Det. Berry "never told him" about anything like that in this
case. (Id. at66-67, 140.)
However, the documentary record shows that (1) Det. Berry did
provide such assistance to at least two infonnants before they testified at the
Allen trial, and (2) Mr. Jackson was fully aware of what Det. Berry had done,
having recorded this information in his own pretrial notes for the Mozee and
Allen cases. Yet none of it was disclosed, and it is clear from the trial record
that the defense knew nothing about it
1. Charles Manning
Charles Manning testified for the State at the Allen trial. At the time
he testified, he was not in custody and told the jury that he was employed at a
local TV news station. However, at the time Rev. Borns was killed, he had
been homeless and addicted to crack, and the murder victim (Rev. Borns) had
hired him for odd jobs and allowed him to stay inside his store. Manning
then testified that he knew both Mr. Mozee and Nfr. Allen, and that the two
defendants frequently "hung out" together around that time. (See Allen. T.T.
Vol.III: 215-18). No mention was made of any criminal charges pending
against Manning, either at the time he testified or in the recent past (Id.)
Although Manning provided no evidence tying Nfr. Allen or Mr. Mozee
to the murder, the State relied heavily on his testimony to establish an alleged
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Fimlings ofFact in Response to
Remand Order - Page 49
link between them, MI. Jackson's co-counsel, ADA Eric Mountin, then
went to great lengths at srumnation to distinguish }\/fanning from the other
testifying informants the State had presented. Unlike the informants with
pending criminal problems, ADA Mountin told the jury, Manning had none,
and thus had no "reason to lie" for the State:
Remember Charles Manning? Remember the gentleman, the
homeless gentleman who talked about getting his life back
together? Remember how he told you what he remembered from
the streets, the people he knew, the people who ran in that
neighborhood? Remember one of the things that he talked about
was the fact that Dennis Allen and Stanley Mozee ran together
all the time. They were with each other all the time.
Now, why would Charles Manning lie about that? And what do I
mean lie about that? Well, Dennis Allen told you that he didn't
even know Stanley Mozee, didn't hang with Stanley Mozee,
didn't smoke crack cocaine with Stanley Mozee, had nothing to
do with Stanley Mozee. And yet Charles Manning pointed out to
you folks, that that was somebody that spent a lot of time
together. Why would Charles Manning lie? He is probably the
most credible witness of any witness in this case. Because he is
the one witness that no matter what Mr. Oatman may try to paint
on those other witnesses about deals that they may have made or
he alleges of thinks occurred or suggests occurred, there's no
deal with Charles Manning. There's no reason for Charles
Manning to lie.
(Exh. 25; R.R.II: 140.)
What prosecutors did not tell the jury, 7 however, is that Manning was
in fact in legal jeopardy during the entire year he cooperated with the State's
7
It is unclear whether Mr. Mountin himself knew, at the time he made this argument,
Applicant Stanley Mozee's Objections to Trial Court's Supplemeltfal Findings of Fact ill Response to
Remand Order - Page 50
investigation into the Borns homicide, including when he testified.
Moreover, Det. Berry had personally intervened to keep him out of jail duxing
that time. Manning was on probation for aggravated theft at the time Rev.
Borns was killed in April 1999, and in August 1999, he was charged with
violating his probation. (R.R.I: 135-36; Exh. 24.) Yet he was not remanded
as a result of the violation, with the State's motion to revoke his probation
passed on several times in the ensuing months. Finally, after Det. Berry
intervened on his behalf(see infra), in January 2000 he was allowed to remain
free on a personal bond pending resolution of the motion. (Id.). The
revocation motion was still pending at the time Manning testified at the Allen
trial. (Id.)
Mr. Jackson was fully aware of this information. At the hearing, what
Judge Hawthorne would later describe as Mr. Jackson's own "meticulous
notes" from his trial preparation in the Mozee and Allen cases were entered
into evidence. See Exhs. 14-17, 50-51; R.R.I: 109. In those notes, Mr.
Jackson documented the following: "Berry helped out Manning and
Degraftenreed with their probation violations." (Exh. 17; R.R.I: 127)
(emphasis added).
that Manning had a pending probation violation and that Det. Berry had intervened on his behalf
as a direct result of his cooperation. But Mr. Jackson clearly did know, as reflected in his notes
(see infra), and failed to correct Mr. Mountin's false argwnent to the jury.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 51
ADA Jackson claimed to have no present recollection ofDet Berry's
actions on l\1anning's behalf, nor did he recall whether he told the defense
about it. (Id. at 129-30.) He swore under oath that Det. Berry "never told
[me]" about any assistance provided to Manning in connection with this case.
(Id. at 140.) However, he eventually conceded that he would not have made
his file notation about Berry "help [ing] Manning and Degraftenreed with their
probation violations" if someone had not told him about that assistance. (Id. at
137.) He also agreed that any undisclosed actions Det. Berry had taken on
behalf of a witness with a pending probation violation would be a clear
violation of Brady. (Id. at 130.)
Confronted with his file notes -- as well as the fact that he remained
silent at Mr. Allen's trial while his co-counsel argued to the jury in summation
that Manning had no pending criminal cases, and thus no "reason to lie" (id. at
138-39) -- Mr. Jackson proceeded to speculate that perhaps Manning's history
was not disclosed because Det. Berry had helped him with a prior violation,
resolved long before Manning became an informant in this case. See, e.g., id.
at 139 ("it could have been on a previous deal"); id. at 134 ("if we helped him
out years before then, I don't think it would" be covered by Brady).
However, the record squarely refutes Mr. Jackson's hypothesis (which
he admitted was only speculation), for three reasons. First, Manning's own
Applicant Stanley Mozee's Objections to Trial Court's Suppleme11tal Findings of Fact in Response to
Remand Order - Page 52
official records, as noted above, show that he did in fact have a J;Jending
violation and motion to revoke at the time he testified in this case. Second,
the assistance Det. Berry provided was documented in Mr. Jackson's own
pretrial notes for the Mozee and Allen cases, further demonstrating the
connection to this case (and its exculpatory value) at the time. Third, shortly
after the foregoing evidence and testimony was presented at the hearing, the
current District Attorney investigated the circumstances surrounding
Manning's probation violation and why he was allowed to remain on bond in
1999-2000. The State's own records apparently confirmed that Manning's
cooperation with the State in the Mozee/Allen cases was specifically cited by
the State as a reason for the comt to allow Manning to remain on bond, and
that this intervention on his behalf occmred before he testified for Mr.
Jackson at Allen's trial. 8
Like Zane Smith, Manning was also immediately rewarded for his
testimony. The State finally withdrew its long-pending motion to revoke his
probation on September 20, 2000 - less than three weeks after Mr. Allen was
convicted at the trial in which Manning testified. (Id.)
8
See Supplement to Amended Applications for Writ of Habeas Corpus, filed Nov. 18,
2015 (setting forth State's post-hearing Brady disclosures to Applicants regarding Manning).
The State has also informed the undersigned that Manning acted as a police informant on other
cases besides this one, and was suffering from severe mental problems at the time of the Borns
investigation. These are still further Brady disclosures that were not made by Mr. Jackson.
See id.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 53
2. Alvin Degraftenreed
Mr. Jackson's nondisclosure ofDet. Beny's pre-testimony assistance
to another witness, Alvin Degraftenreed, essentially mirrors what transpired
with Manning. Degraftenreed identified Mr. Allen at trial as the taller
companion of a "short" man he claimed to have seen arguing with the
homicide victim on the night of the murder. (Allen T.T., Vol. 3 at 183.) At
the conclusion of his testimony, Mr. Jackson asked ifDegraftemeed had any
"prior felony criminal record," and the witness answered affirmatively. The
jury was then told that his sentence for this offense was long ago "lived out,"
and that the State had not assisted him for "any reason or on any subject":
Q: [D]o you have any prior felony criminal record?
A: Yes.
Q: Okay. What was that?
A: Arson.
Q: Okay. How long ago?
A: Oh, ten years-probably ten years.
Q: Okay. Did you get probation or penitentiary time?
A: I got probation
Q: Did you live it out or did you get revoked and sent to
the pen?
A: I lived it out.
Q: Do you have any other prior felony convictions.
A:No.
Q: Do you have any other theft convictions?
A:No.
Q: Have you asked me or have I said that I would
intercede in your behalf on any reason or any subject?
A:No.
Id. at 185-86; Exh. 22 (emphasis supplied).
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 54
This was incorrect As with ]\!fanning, the record shows that
Degraftenreed in fact had a 2ending probation violation while the Borns
investigation was ongoing. Mr. Jackson was aware of that violation, as well
as the fact that Det. Berry had "helped" him with the violation, recording that
information in his pretrial notes. (See Exh. 17, 22; R.R.I: 130-32.) In fact,
the State withdrew its motion to revoke Degraftenreed's probation on
December 9, 1999 - between when Degraftenreed first spoke with Det. Berry
about the Borns homicide in May 1999, and when he testified at Mr. Allen's
trial in September 2000. (Id.)
When confronted with this record, Mr. Jackson initially defended
himself by noting that Det. Berry "can't withdraw a motion" to revoke
probation (the benefit that Degraftem·eed actually received). Id. at 132. But
he quickly conceded that Det. Berry could certainly go talk to the ADA on
Degraftenreed's case about his cooperation in a pending homicide. Id. at
133. He further conceded that ifDegraftenreed's 1999 probation violation
was the one in which Det. Berry had intervened, it would be a Brady violation
if not disclosed to the defense before Degraftenreed testified. (Id. at 133-34.)
* *
The evidence of the above violations regarding Manning and
Degraftenreed is of great significance for Mr. Mozee, even though they did
Applicant Stanley Mozee's Objections to Trial Court's Suppleme11tal Findings ofFact in Response to
Rema11d Order - Page 55
not testify at his trial. For when it carne to these two witnesses, Mr.
Jackson did precisely what he swore he would "never" do and "did not" do
with respect to Zane Smith, the informant who testified against both Mr.
Mozee and Mr. Allen: (I) provide pre-testimony benefits to a witness with a
pending criminal case, (2) fail to disclose any benefits he knew about, and
(3) remain silent while the jury was given false information about the
witness's own criminal case, and any benefits that had been given or
promised.
Thus, because Mr. Jackson clearly suppressed Brady material and
suborned false testimony at the Allen trial, this Court has all the more reason
to doubt his assumption that he did not engage in such conduct at Mr.
Mozee's trial. Indeed, it is even more likely that Mr. Jackson gave similar
undisclosed benefits to Smith, who was a far more crucial witness for the
State - he was the only informant who claimed that Mr. Mozee had
"confessed" to him, and was faking symptoms of mental illness - than either
Manning or Degraftenreed.
B. The Trial Prosecutor Failed to Disclose Exculpatory Evidence
Regarding Numerous Alleged Eyewitnesses
The substantial evidence of ADA Jackson's non-compliance with
Brady and Napue in the Mozee and Allen cases was not limited to informant
testimony. In Applicants' 2014 writs, and at the hearing below, they
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact i11 Response to
Remand Order - Page 56
offered substantial evidence that .Mr. Jackson also repeatedly engaged in a
pattern of such violations with respect to eyewitness testimony.
Although each of the eyewitnesses in question reportedly identified
.Mr. Allen (if anyone), the violations were equally if not more prejudicial to
Mr. Mozee. This is because at .Mr. Mozee's trial, ADA Jackson elicited
highly damaging hearsay testimony from Det. Berry regarding allegedly
positive identifications of.Mr. Allen by three store clerks, each of whom had
witnessed two suspects trying to use victim's stolen credit cards on the night
of the murder. .Mr. Mozee's jury was led to believe that only these three
clerks "saw [the suspect] actually using the card[s ]," and that each one
identified .Mr. Allen. (Mozee T. T. Vol., 2, pp. 208-09). 9 The State then cited
this testimony as objective corroboration for Mr. Mozee's custodial
confession. (See Mozee T.T. Vol. 4 at 92: "He says it's he and Dennis Allen.
Lo and behold, Dennis Allen is the one using the credit cards, selling the
pager. He's been identified.") Unbeknownst to .Mr. Mozee's jury, however,
none of the store clerks ever identified .Mr. Allen in court-with one of them
recanting his alleged identification at trial, and the State electing not to call the
9
In his Amended Writ, Mr. Mozee also alleged that his trial counsel was ineffective for
failing to object to this hearsay testimony by Det. Betry, rather than have the State bring the
eyewitnesses to court to be examined about their alleged identifications. The prejudice from
this error is clear, since none of the store clerks in fact identified Mr. Allen at his own trial. The
district court entered its findings before this claim could be fully developed, despite earlier
indicating that it would provide the parties an opportunity to present further testimony.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 57
other two as witnesses. See Writ MOL at 54-64. Moreover, the record
developed below indicates that Mr. Jackson was personally aware that several
eyewitnesses did not identify Allen or Mozee or had made statements casting
doubt on the accuracy of their allegedly positive identifications - yet this
information was not disclosed to the defense.
1. Kyoung Jang
As noted in Applicants' opening writ memorandum (see Joint MOL at
59-60, 103-04), Mr. Jackson's trial file contained substantial impeachment
information regarding the alleged identification of Mr. Allen by store clerk
Kyoung Jang. According to Det. Berry, Ms. Jang was one of the clerks who
identified Mr. Allen as the man who had tried to use the victim's stolen credit
card in July 1999. Yet ADA Jackson did not call Ms. Jang to testify at either
trial. See id.
Yet ADA Jackson's trial file contained an undisclosed document that
appears to explain why Ms. Jang was not called as a witness: an interview of
Ms. Jang by a different detective that was conducted eight weeks before Det.
Berry secured this allegedly positive identification from her. In that report;
Ms. Jang candidly stated that she "could not recognized [sic] anyone in
relation to the attempt [sic] use of the complainant's credit card, as she had not
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact i11 Response to
Remand Order- Page 58
gotten a close look at the individual trying to use it" See id. at 59; Joint MOL,
Exh. QQ; R.R.II: 113-14 (emphasis supplied).
At the hearing, Mr. Jackson agreed that this report was clearly
exculpatory evidence that he was obligated to disclose to defense counsel.
(R.R.II: 113-14.) Yet it was never mentioned at either trial, nor is the report
in defense counsel's file. See Joint MOL at 59-60, 113-14. Mr. Jackson had
no recollection of providing this report to either defendant. He also could not
explain why, if he did provide it, the disclosure of this report was not
mentioned in any of his detailed notes. See id at 114 ("I tried to make [the
notes] thorough but I'm not always perfect about it").
2. Roderick May
Roderick May (also referred to in certain portions of the record as
"Mays") was another non-testifying eyewitness. Yet neither May's initial
interview report, or any report of the photo arrays he was shown, were
provided to the defendants. May's name appears in the record for the first
time in the middle of Mr. Allen's trial, when Det. Berry stated, on
cross-examination by Mr. Oatman, that "Roderick Mays" was one of the
witnesses who reported seeing two black men trying to sell pagers near the
vicinity of the Rev. Borns' store on the night of the murder (the store's pagers
had been stolen).
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 59
Det. Berry then admit-ted he had shown May a photo lineup, but
clain:ied he did not have the report, nor did he know where to find May:
Q: Let's st[art] with Mays. Did you show him a photographic
lineup?
A: Yes, I did.
Q: Where is he today?
A: I have no idea.
Q: "Have you looked for him?
A: Today?
Q: Well, could you find the report that says you showed it to Roderick
Mays?
A: I don't have that report.
Q: You don't have it?
A: No, I don't
(Allen TT Vol. IV: 152-153).
The evidence presented below, however, established that (1) a copy of
the initial interview report with May was in Mr. Jackson's trial file, revealing
that he had given detailed descriptions of two black males attempting to sell
pagers near the scene that night, and (2) with good reason, Mr. Jackson
inquired, during his pretrial preparation, "Did May ever see a lineup of
defendants or anyone else? Anybody know who those two B/M' s were?"
(R.R.II: 109; Exh. 50). In additional notes, Mr. Jackson at some point
answered his own question about the results of May's photo lineup: "didn't
10
pick anyone." (Id.) (emphasis supplied).
w In an effort to avoid the obvious implications of this file notation, particularly in light
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 60
At the hearing, Mr. Jackson agreed that ifJ'vfay had been shoWI1 photo
arrays of these defendants and asked whether either of them was one of the
black males he saw attempting to sell pagers, "and didn't pick them out," that
would be exculpatory evidence. (Id. at 110.) He would have been obligated
to reveal that information to the defense, but he has no recollection or record
of doing so. (Id) And it is clear from the questions that Mr. Oatman asked
Det. Berry at trial that he was wholly unaware of this information.
Thus, as with numerous other witnesses, the record developed below
regarding Roderick May shows that Mr. Jackson was personally aware of
exculpatory evidence (that May had seen two suspects attempting to sell the
victim's property, but "didn't pick anyone" when shown the defendants'
photographs) that he failed to disclose. The record further indicates that- as
with Zane Smith and Lonel Hardeman - Mr. Jackson breached his duty to
correct the record when a witness (here, Det. Berry) gave false or misleading
testimony regarding that undisclosed exculpatory evidence.
3. Other Eyewitnesses
ofDet. BetTy's testimony at trial that May was shown a photo lineup, Mr. Jackson stated at the
hearing that one of his investigators in the DA's Office had the first name "May," and said, "I
don't know if that's her or somebody- if it's Roderick Mayes." (Id. at 109.) But of course,
there would have been no reason for Mr. Jackson's own investigator to be viewing photo lineups
of suspects in this case to see if she herself could "pick anyone." And the reference in
Jackson's notes to a witness who had already described "two B/Ms" in connection with this case
corresponds directly to the infonnation in Berry's report on witness Roderick May.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 61
Finally, Det. Berry's notes strongly suggest that there may be
additional Brady material he failed to disclose with respect to other
store-clerk witnesses. In addition to Ms. Jang, supra, three additional
witnesses viewed two men attempting to use the victim's stolen credit card:
Inson Chon, Sang Kwoon, and Sun Jung. However, none of these witnesses
testified at either trial- even though Kwoon was listed in Det. Berry's reports
as a witness who had allegedly made a positive identification of Mr. Allen,
and even though Mr. Chon (the store manager) was the one who viewed the
primary suspect most clearly and gave a detailed description to Det. Berry.
See Joint MOL at 102-107 (discussing reports in Mr. Jackson's file for
each). 11
Mr. Jackson had no recollection as to why he did not call any of these
witnesses who may have identified Mr. Allen to testify. His practice would
be to interview any eyewitnesses himself before putting them on the stand.
(R.R.II: 104.) He agreed that if any witness indicated to him, or anyone else
working for the State, that a defendant was not the man they saw, or recanted
an earlier positive ID, that would be Brady material; he said he would disclose
it "ifl knew that, yes." (R.R.II: 104-05.) In fact, Mr. Jackson's notes indicate
11
Sun Jung identified another suspect - Darryl Adkins - when she viewed the array,
although this fact was brought out at Mr. Allen's trial.
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings ofFact in Response to
Remand Order - Page 62
that he personally met with both Jang and Kwoon prior to trial (having put
check marks next to their names on his "Meetings" list). See Exh. 17.
Regarding witness Chon (the store manager), he made a note to himself
to "subpoena Chon and ... put [him] on standby." However, elsewhere in
his file, as part of his pretrial preparation, he wrote himself a note asking
whether Chon had "ID['d] Defendant Allen" - and then answered his own
question, "NO." (Exh. 50.) The fact that Chon had apparently not identified
Allen - the person whom the State alleged had tried to use the Rev. Borns'
credit cards at multiple locations -was never presented to either defendant's
jury. Nor did Mr. Jackson correct or qualify the highly misleading testimony
given by Det. Berry at Mr. Mozee's trial the three store clerks Det. Berry
interviewed during his investigation into the stolen credit cards had identified
Mr. Allen.
In sum, the substantial evidence already developed below that Mr.
Jackson personally knew about recanted identifications and/or "no-ID"
results of photographic arrays, yet failed to disclose this to the defense or
correct false and misleading testimony by Det. Berry, is still further evidence
in support of Mr. Mozee's other Brady claims that the district court failed to
consider. It is paiiicularly troubling that the court did not consider these
other violations even though its fact findings in Mr. Mozee's case were based
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 63
on nothing but the court's acceptance of Mr. Jackson's personal belief that he
did not violate Brady (i.e., by accepting his representation that he fully
complied with Brady in every case, and thus, that he must have done so here).
C. Trial Prosecutor's Admission that He Did Not Correct
Testimony from Informant Lonel Hardeman that He
Personally Knew to Be False
Last, but certainly not least, this Court should hesitate to defer to the
district court's interpretation of the record and Mr. Jackson's personal belief
in his compliance with Brady, because the court failed to consider Mr.
Jackson's concession at the hearing that he in fact violated his
well-established duty to correct false testimony given by info1mant Lonel
Hardeman at Mr. Allen's trial.
The egregious falsity ofHardeman's testimony (disclaiming not just
any "deal" with the State, but even any desire for assistance with the
numerous felony charges pending against him) in light of his explicit letters to
the contrary is clear. That portion of the record is discussed in detail in Mr.
Allen's Objections to the court's findings (also filed on this same date). It
bears emphasizing, however, that in addition to the documentary evidence
that Hardeman repeatedly gave false testimony, ADA Jackson specifically
admitted that Hardeman lied at trial. See, e.g., R.R.I: 75-76 (Mr. Jackson
agreeing that, when he asked Hardeman, "Have I told you that we would talk
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 64
about maybe doing something in your case when this [testimony] was over?"
and Hardeman responded, "No, sir," that Hardeman was in fact "lying.'')
Mr. Jackson then conceded that if he did not correct this testimony (which the
trial transcript shows he did not), it would be a clear Giglio violation on his
part. (Id. at 76-77.)
Judge Hawthorne did not consider any aspect of either defendant's
false testimony claims when she summarily found Mr. Jackson "credible" in
his belief that he complied with Brady and Giglio throughout their trials -
even the portion of the record in which he admitted that he allowed testimony
from a key informant in this case that he knew to be false. The district court
thus overlooked a critical aspect of the record that goes to the heart of the trial
prosecutor's integrity and practices. As a result, this Court should exercise
caution before deferring to Judge Hawthorne's review and interpretation of
the record.
Applica11t Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
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CONCLUSION
WHEREFORE, Applic:mt respectfully requests that this Court grant
his claim for relief under art. 11.07 based upon the State's failure to disclose
material, exculpatory evidence; or, in the alternative, remand the case for
further factual development of his Brady claims and the other claims in his
Amended Writ application.
Respectfully submitted,
I
Nina Morrison
(Appearing Pro Hae Vice)
INNOCENCE PROJECT, INC.
40 Worth Street, Suite 701
New York, NY 10013
Telephone: (212) 364-5340
Facsimile: (212) 364-5341
Ezekiel Tyson, Jr.
Texas Bar. No. 24034715
THE TYSON LAW FIRM
342 W. Montana Ave.
Dallas, Texas 75224
Telephone: (214) 942-9000
Facsimile: (214) 942-9001
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
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CERTIFICATE OF SERVICE
I hereby ce1iifythat true and correct copies of the foregoing Objections to
Trial Court's Supplemental Findings of Fact in Response to Remand Order
were served on the Dallas District Attorney's Office, Attn: Patricia Cummings
and Cynthia Garza, Assistant District Attorneys, by first class mail and electronic
mail, on this 8th day ofDecember, 2015.
Nina Morrison, Esq.
Counsel for Applicant Stanley Mozee
Applicant Stanley Mozee's Objections lo Trial Court's Supplemental Findings of Fact in Response to
Remand Order-Page 67
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 73.l
Pursuant to Tex. R. App. Proc. 73.l(f), I hereby certify that the foregoing
Objections comply with the word limitations of Rule 73.1(d), in that the
memorandum does not exceed 15,000 words, excluding those portions exempted by
the Rule. The total word count for those portions of the Memorandum covered by
Rule 73.l(d) consists of 14,891 words.
Nina Morrison, Esq.
Counsel for Applicant Stanley Mozee
Applicant Stanley Mozee's Objections to Trial Court's Supplemental Findings of Fact in Response to
Remand Order - Page 68
Mozee, Stanley Orson
Combined Opinion