Almost a year after a mistrial was declared in an aggravated sexual assault case against Dean Paul Asbury, the Panola County District Attorney’s Office got a surprising piece of mail from the state crime lab:
A report on DNA evidence in the case had been finished.
The trouble was this: Both District Attorney Danny Buck Davidson and Asbury’s lawyer Rick Berry say they didn’t know the DNA evidence existed, and state law requires prosecutors to disclose all evidence in a case to the defense.
The state crime lab’s report would exonerate Asbury. It would also bring forth more concerns about potential misconduct from former Assistant District Attorney Katie Nielsen, who was lead prosecutor in the case and the focus of misconduct allegations that led to the Asbury mistrial in the first place a year earlier.
“Mr. McPherson and myself were totally unaware that DNA swabs were sent to Garland for DNA analysis,” Davidson wrote in a letter to Berry dated Oct. 7, 2020. “I have been the Elected Criminal District Attorney for Panola County since January 1, 1995 and I can not imagine a lead attorney not being extremely knowledgeable of all the facts in the case that is being prepared for trial. To not know all about the file is inexcusable and inconceivable.”
Panola County Court-at-Law Judge Terry Bailey dismissed Asbury’s case in October 2020 based upon his “actual innocence.”
And since that time, another case prosecuted by Nielsen has been dismissed “due to prosecutorial misconduct of then Assistant District Attorney, Katie Nielsen”: a murder charge levied against Deborah Smiley McFadden in connection with the shooting death of her estranged boyfriend Edward Eugene “E.E.” George Jr. in 2003.
McFadden had been convicted on that charge in February 2017 but was granted a new trial by the Sixth Court of Appeals. McFadden’s attorney Jason Cassel argued Nielsen withheld grand jury testimony and also may have tampered with a court document. Cassel argued that what the trial court deemed to be an oversight by Nielsen — combined with the recent accusations of misconduct in the Asbury case — “appears to be a pattern of misconduct.”
Nielsen, when called for comment on Thursday, said she was not aware of further accusations of misconduct that had been made since she left the DA’s office in 2019. She declined to discuss the Asbury case because it was “still ongoing.” She also said she was not aware of an accusation of misconduct in the McFadden case.
She declined an offer to view court documents related to the misconduct allegations, saying it would be better for it to come from an attorney.
In a subsequent call, Nielsen vigorously denied the idea that she engaged in misconduct in the McFadden case.
“I’m really tired of this piling on. There was no prosecutorial misconduct in that case. Jason Cassel knows it,” she said. “But there is a piling on that’s going on because it’s easy to do, and I’m really tired about this. I’m just an easy scapegoat kind of a person. I don’t want anything. I don’t want an office, I don’t want anything. I just want to be left alone, and nobody seems to want to get that. So that’s the truth.”
Asbury was indicted for aggravated sexual assault charge in 2018 after he was alleged to have sexually-assaulted a disabled person in April 2018, according to an indictment in the case. But 123rd District Judge LeAnn Rafferty declared a mistrial in 2019, based on prosecutorial misconduct, and Nielsen left the DA’s office at that time.
Court transcripts of hearings in the case, as well as correspondence, show that Asbury’s attorney, Rick Berry, questioned the criminal histories of at least two main witnesses in the prosecution’s case. Nielsen had previously told the court that she asked and no criminal histories were found. Berry, however, found that the witnesses did have criminal histories after the trial had started.
Rafferty, in her 2019 mistrial findings, noted Davidson’s office admitted negligence and found there was misconduct, although she also determined that those acts were not intentional. Specifically, she found:
- the State lacked due diligence and was negligent
- the State misrepresented facts to the Court on multiple occasions
- the State failed to comply with a Court order and pronouncements of the Court
- the State failed to provide requested material to the Defendant
- the State failed to provide Defendant with material that it was constitutionally required to provide
The mistrial ruling did not dismiss Asbury’s indictment, and prosecutors would have been allowed to retry him on the aggravated sexual assault charge. But the surprise DNA report received by the DA’s office in September 2020 prompted Davidson to drop the case.
In a motion to dismiss dated Oct. 14, 2020, Davidson cited two polygraph tests that Asbury passed and DNA test results that “shows no DNA evidence of the defendant on the swabs and the victim’s boxer shorts, there is no physical evidence of an assault and the fact that a prosecutor’s mission is not to convict but to see that justice is done.”
In his Oct. 7 letter to Berry, Davidson provided a timeline of events and his involvement in the case, which because he was not lead prosecutor, was attending jury selection and watching closing arguments. He noted Ric McPherson had recently joined the office and acted as Nielsen’s second chair.
But Davidson told Berry neither he nor McPherson knew about the DNA evidence. He also noted he could not find the original file.
“The last time I saw the Asbury prosecutor file it was in possession of Ms. Nielsen and she was planning a retrial since the Judge granted a mistrial,” Davidson wrote. “After Mr. Nielsen (sic) left my office my staff and I have been unable to locate the original file.
“Upon leaving Ms. Nielsen took her work on two capital murder cases with her because they were not left in her previous office and have not been located,” he added.
Berry said his client has already filed a complaint with the Texas Bar Association based on Nielsen withholding criminal histories of witnesses and the DNA.
“It just shows a pattern of behavior that’s just unethical,” he said. “Mr. Asbury spent over 900 days in jail for something he didn’t do, and it was only through my efforts at his attorney plus the efforts of Mr. Davidson after finding out there were improprieties that we were able to get the charges dropped against Mr. Asbury in Panola County and then convince the State of Texas to drop a parole issue.”
McFadden was first indicted on a murder charge in 2004, but her case did not advance on the docket until 2015. It was at that time that her attorneys filed a motion seeking to have Judge Bailey recused because the lead prosecutor, Nielsen, had ex parte communications with him. It was also alleged Nielsen had altered or had file marks altered on a motion. That first indictment was later withdrawn.
Nielsen then re-indicted McFadden in 2015, and she would later be convicted on the murder charge in 2017. The Sixth Court of Appeals sent her case back for a re-trial in 2018, agreeing that the district court failed to instruct the jury on deadly conduct in defense of property under the Texas Penal Code.
David George, E.E. George’s son, said Friday his family did not agree with McFadden’s murder charge being dismissed, pointing out she was on probation for a different shooting and shouldn’t have had a gun in the first place.
“She was on probation and she had a gun. How could it... at least retry it and let another jury find her guilty or not guilty,” he said. “That would — to me that would be the right, legal thing to do.”
George, on Friday, said that Nielsen had been doing her job and that his family did not believe there was any misconduct on her part.
“I just want the people to know that myself and my family, none of us believe those allegations,” he said. “Honestly, we feel like she was doing a great job and was representing our family, and the county for that matter, very professional and upholding justice like she was sworn to in the office that she was holding.”
In recent motions in the case ahead of her re-trial, McFadden’s defense lawyers argued the sole witness in the case, given the initials V.M., had provided an account of the crime that supported McFadden’s claims of self-defense to the grand jury and then later changed her testimony at the 2017 trial. Cassel argued that original grand jury testimony had not been provided to the defense counsel.
“In the months leading up to the trial, defense counsel had asked Ms. Nielsen about who testified at grand jury and if there were any transcripts,” Cassel wrote in a motion for writ of habeas corpus. “None were provided. At trial, when V.M. testified at odds with her prior statements, defense counsel noticed that Ms. Nielsen was reading from a transcript. This was V.M.’s grand jury testimony, which had never been provided to the defense.”
In his recent writ and at at Feb. 25 hearing, Cassel argued that omission, along with the earlier questions about a potentially altered document, were concerning amid recent allegations from the Asbury case.
“This is just one more thing that I think everyone was concerned about in showing a pattern of conduct that, you know, frankly’s calculated to injure the rights of my client, of Ms. McFadden,” Cassel told Judge Rafferty.
Special prosecutor Craig Fletcher told Judge Rafferty at that same hearing she should dismiss the case.
“Judge, the interesting thing about being special prosecutor in this case is I have to take the same oath that Ms. Nielsen took,” Fletcher said, according to court transcripts of the hearing. “My oath is to seek in this, in Ms. McFadden’s case, that justice be done. And, quite frankly, I can’t stand in front of you in good faith and make a plausible argument that — and I hate to say this — I can’t make a plausible argument in my — in my honest opinion that what Mr. Cassel is asking for is not the appropriate remedy in this case.”
“I can say that it appears that we have a continuation of violations of Michael Morton and Brady,” he said. Prosecutors are suppo- — we’re charged with being fair and seeing that justice is served, and not to get a conviction based on lying or hiding facts. And his motion is very compelling. And it is — it is terrible,” he said. “I’m shocked that someone that would work for me would be this legally and morally unethical.”
The Michael Morton Act, signed into law by then-Gov. Rick Perry in 2013, is intended to prevent prosecutors from suppressing evidence. It requires prosecutors to disclose all evidence that has been gathered to the defense. Prosecutors are also bound by a 1963 U.S. Supreme Court case ruling, Brady v. Maryland, that requires them to turn over evidence that is “material either to guilt or to punishment.”
Nielsen said Thursday she knew the McFadden case wouldn’t be retried once she left the office.
“The reason was is because it wasn’t going to be tried to begin with,” she said. “The son, and you can call him and check this out, the son was the one that begged me to try it and Danny was not going to try it because he told me himself that he wouldn’t try it because he hated the decedent. And that is the truth.”
After George’s son begged her to try the case, Nielsen recalled Thursday she said she would.
“I said I’m going to do it. We’ve got the main witness in from East Coast, we tried it and we got a guilty verdict,” she said.
Nielsen was not present at the February hearing that resulted in the case’s dismissal, and when asked why, Fletcher told Rafferty at the time he had not been able to reach her despite leaving several messages. He said although he could have subpoenaed her, he didn’t believe her testimony would assist in finding facts in the case, saying they already had her testimony when she was at the bench during the trial.
“So I think, quite honestly, it’s probably better for Ms. Nielsen that I did not call her as a witness, because if she denied any of those things, we’ve got statements under oath, or at least as an officer of the court in actual trial proceedings, that she said something different,” Fletcher said. “So as much as this may sound weird, Judge, I think by not calling her, I’m doing her a favor.”