A Fort Bend County judge has upheld complaints of prosecutorial misconduct against a Harris County prosecutor who lied to a jury in a capital murder trial about whether she had struck deals with three jailhouse snitches in exchange for their testimony.
After finding that a prison inmate's false testimony that prosecutor Elizabeth Shipley Exley knowingly allowed on the stand led to the conviction of Edward George McGregor, Judge James Shoemake has recommended McGregor receive habeas corpus relief and a new trial.
"For a prosecutor to make secret arrangements with witnesses, not disclose them to the defense and the jury, and elicit false testimony where the witnesses deny it, I find that to be just totally deplorable," said Randy Schaffer, McGregor's attorney. "It's basically saying we have the right to present false testimony and there's not a damn thing you can do about it."
McGregor was charged in the mid- and late-2000s with capital murders dating back to 1990 and 1994 in Fort Bend and Harris counties, respectively. Shipley Exley worked on the case in Fort Bend, given it was the first case to go to trial. According to the judge's findings, because DNA evidence wasn't strong enough to convict McGregor, Shipley Exley was in charge of getting three jailhouse witnesses on the stand. They testified that they overheard McGregor confess to the killings.
Turns out, all three witnesses received some nice perks thanks to prosecutor Shipley Exley's good word. Perhaps the most damning witness was a prison inmate named Delores Gable — because her entire story turned out to be a lie.
Gable, serving 90 years for soliciting to commit murder, testified that she was not given any benefits for testifying, but that she only wanted to clear her conscience because she was battling cancer. On the night of the murder 16 years earlier, she said she overheard McGregor confess about the murder to her husband, Brian Gable, while standing outside the victim's home; and she added that McGregor's father was also present. The problem: McGregor's father was actually in prison on the night of the murder, Delores Gable was never married to Brian Gable, her name is actually Delores Lee, she never had cancer, and she never lived at the residence she claimed she did, according to the judge's findings.
Shipley Exley testified in the habeas corpus hearing that she knew McGregor's father was in prison that night, but apparently let her witness lie on the stand anyway. She said she also knew McGregor's ex-fiancé was locked away with “Gable,” but never disclosed this in the trial.
Shipley Exley told Judge Shoemake that she did in fact tell Gable before the trial that “the most that I could possibly do is write a letter to the parole board explaining to them that she had cooperated.” Her reason for believing she didn't need to disclose that to the jury, the defense or even her Fort Bend co-counsel when she was asked if deals were made? “I didn't say specifically that I would do it; it wasn't a promise.”
But Shipley Exley did do it, and admitted that midway through the trial, Gable even sent her a note telling her what to write in the letter to the parole board. Five days after McGregor was convicted, largely thanks to Gable's testimony, Shipley Exley followed through on her non-promise and mailed the letter. Asked why she never mentioned the conversation she had with Gable during the trial, Shipley Exley said, “I think I forgot.”
Schaffer, McGregor's attorney, described Shipley Exley's actions as shameful. “They've got a witness who will crawl out of the penitentiary, say the story they want to hear — that she heard a confession 16 years ago that she's never told anybody about until now — and you're willing to accept that story and put it on as true without doing anything to check it out?” Schaffer said. “The whole thing was a sham, and [Shipley Exley] didn't even care.”
Then there are the two other jailhouse snitches who received massive reductions in punishment because of their contributions to this capital murder trial, courtesy of Shipley Exley.
Both men, Marvin Roy Paxton and Adam Osani, were awaiting trial in the Harris County Jail for an aggravated robbery and felony assault of a family member, respectively. Paxton testified that he and McGregor got in a fight in jail, and McGregor told him to shut his mouth or else he would kill him like he killed “those two bitches.” Osani backed up Paxton's tale on the stand, according to the findings.
And both men were given hefty rewards for saying it: Apparently at the direction of Shipley Exley, the prosecutor in Osani's case reduced his charge from a felony to a misdemeanor and released him on time served just days after McGregor's trial ended. Paxton's case was reduced from an aggravated robbery to just a robbery, and his plea deal from up to 45 years to just seven years, according to the habeas findings.
None of these benefits to the witnesses were disclosed to the jury or to the defense during McGregor's trial.
In fact, a DA's office investigator testified to Judge Shoemake that it was a common practice in Harris County to tell witnesses they couldn't "promise" anything — but "could" write a letter on their behalf, if they wanted. Schaffer said he has seen this dishonest "game" played dozens of times in Harris County courts.
“This is a speck of sand on the beach of criminal cases,” Schaffer said. “It's an important case, but it's just one case. There's a larger story here, and the larger story is the systemic misuse of so-called jailhouse witnesses by prosecutors across the state to fill in holes in cases that they otherwise might not be able to win. It's a true disgrace. It's a culture of dishonesty that has fostered in prosecutors' offices across the state.”
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We reached out to Harris County District Attorney's Office spokesman Jeff McShan to ask whether District Attorney Devon Anderson would discipline Shipley Exley, and whether she would condemn the prosecutor's actions.
He didn't respond, and ignored our follow-up email.
Schaffer called for criminal charges to be filed against Shipley Exley for perjury, but said he would not be surprised if Anderson didn't even discipline the prosecutor at all.
Anderson will leave office January 1 and will be replaced by Kim Ogg, who beat her at the polls Tuesday night.