Prosecutor Sarah Mickelson paid witnesses, lied to the court and was subsequently promoted
Prosecutors in the US routinely reward witnesses for parroting the government's version of events on the witness stand. These rewards frequently take the form of reduced prison time, but can also include cash payments. On September 25, 2015, a defense motion filed by Houston defense lawyer Paul Morgan stated that prosecutors violated the constitutional rights of his client, Vernon Brooks, by withholding information relevant to cash payments received by three witnesses, totaling $5,000, after they testified in a related case in February.
Prosecutors and their apologists routinely claim that witnesses are rarely paid. While cash payments may be difficult to uncover, rewarding criminals with greatly reduced sentences for often perjured testimony is not only ubiquitous, it is a hallmark of American justice.
Prosecutor Sarah Mickelson, of the Harris County District Attorney's Office, is accused of withholding evidence and lying before the Court. Defense counsel maintains that they were never advised of cash payments for prosecution witnesses.
"We specifically had a pretrial hearing regarding this subject," said defense attorney Mike Trent. "And (Mickelson) assured the court that no promises of leniency or other benefit had been made to any of the witnesses."
Trent claims to have specifically asked during the hearing if there were any "paid" informants. He claims he was explicitly told no by Mickelson. Trent also said that the testimony of the three paid witnesses was essential to convicting his client. Trent has asserted throughout the proceedings that his client is innocent.
"The outcome likely would have been a lot different if the jury had known that these folks were not only getting leniency, but were also getting cash money," said Trent. "This is totally egregious."
Part of the problem for prosecutors who pay witnesses is that defense lawyers are supposed to be told via a Brady disclosure that those witnesses are being rewarded for their testimony. Once being so advised, defense lawyers are often quite adept at raising reasonable doubt with jurors by sullying the reputation and credibility of paid witnesses. Prosecutors in Houston are being accused of short circuiting this whole process by passing off paid witnesses as selfless citizens.
Last week Morgan filed a motion to dismiss the case against Brooks citing prosecutorial misconduct. On Friday, he filed a motion for the district attorney's office to recuse themselves in the case because of a conflict of interest. Morgan also disclosed that revelations about the payments did not come from prosecutors, but rather from the witnesses themselves who told Brooks' defense team that they had been paid.
Morgan, upon learning of the payments, filed several requests with government agencies under state open records laws and the federal Freedom of Information Act, including one to the FBI. In response to these requests, Morgan obtained receipts showing that Mickelson, under her married name, Sarah Seely, approved the payments after Books' codefendant was convicted. Morgan spent months trying to verify that the witnesses had been paid. Meanwhile, Mickelson was promoted to a supervisory position, allowing another prosecutor to take over the case. It was only through this subsequent prosecutor that the defense was able to verify the witness payments. The verification of the payments was finally given to the defense as Brady material.
Morgan explained that as Brook's case moved toward trial earlier this year, Mickelson told him and State District Judge Katherine Cabaniss that none of the informants had benefitted from the testimony in the case.
"Who knows what else has been withheld?" Morgan said. "We have a serious problem when prosecutors are hiding evidence."
A plain reading of the federal bribery statutes indicates compensation to witnesses maybe violative.
The federal bribery statute, codified at 18 U.S.C. 201 and entitled "Bribery of public officials and witnesses," has two separate provisions that criminalize compensation to witnesses. The first, set forth in 201(b)(3) and carrying a maximum prison sentence of fifteen years, requires a finding that the defendant "corruptly" gave or offered something of value "with intent to influence the testimony" of a witness.
The second provision, set forth at 201(c)(2) and carrying a maximum sentence of two years, criminalizes compensation to a witness without any further requirement that it be corrupt or made with the intent to influence a witness' testimony:
Whoever directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court.., shall be fined under this title or imprisoned for not more than two years, or both.