Yet Another Texas Court Proceeding where Prosecutors are “Losing” Evidence

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In 2019, LIT documented cases in state courts where evidence was withheld or misplaced or conveniently lost. On the other side, we also witnessed cases where foreclosure mill lawyers were ‘introducing’ fabricated evidence after the trial had concluded, in the hopes to achieve a reversal of their fortunes.

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DA’s office retracts statement about opposing lawyers

Published; Jan. 16, 2020

The Harris County District Attorney’s Office on Thursday retracted a statement a spokesman made about defense attorneys in Antonio Armstrong, Jr.’s capital murder trial, days after those lawyers threatened legal action.

Dane Schiller wrote the statement to be included in a Jan. 7 article in the Houston Chronicle, responding to allegations that prosecutors lost 22 pieces of evidence during Armstrong’s original trial in April 2019.

Armstrong’s attorney, Rick DeToto, alleged that prosecutors were responsible and were violating his client’s constitutional right to a fair trial. The district attorney’s office contended no one was at fault, citing Judge Kelli Johnson’s same assessment of the situation the day attorneys realized the evidence was missing.

Schiller told the paper that “defense lawyers are once again lying to the public and potential jurors about the facts” in the murders of Armstrong’s parents.

DeToto retained his own attorney, who sent a letter Monday to the district attorney’s office.

“While it is understandable that the Harris County District Attorney’s Office would be overly sensitive about losing evidence in a high-profile case, however, for the District Attorney’s office to issue a written statement to the media calling my clients “liars,” is beyond the pale and will not stand,” said Dean Blumrosen, DeToto’s lawyer.

The district attorney’s office sent the Chronicle a retraction of the statement on Thursday.

“The Harris County District Attorney’s Office should not have characterized the Armstrong defense lawyers as ‘lying’ in that email message,” the statement reads.

Armstrong’s re-trial is scheduled to begin in late March. A jury deadlocked in 2019 over a verdict in the summer 2016 shooting deaths of his parents.

22 pieces of evidence missing in shooting deaths of Bellaire-area couple

Published; Jan. 6, 2020

Prosecutors told Antonio Armstrong Jr.’s defense that 22 pieces of evidence went missing during his first trial in the 2016 murder of his parents, just days before jury selection was scheduled to begin in the 20-year-old’s re-trial, his lawyers said.

The new trial, which was set to begin Monday, has now been rescheduled to March 26 in state District Judge Kelli Johnson’s court — overlapping with another prominent trial in her court for the sentencing of David Temple, an ex-Katy-area football coach found guilty in the murder of his pregnant wife.

Given the conflict, it’s unclear when Armstrong’s trial will actually begin. But defense attorney Rick DeToto said he and his co-counsel are determining how to proceed since he feels prosecutors are using “tactics to violate AJ’s constitutional rights,” considering state attorneys might have known the full contents of a lost garbage bag of evidence months ago.

“It’s significant in that it appears to be a pattern of conduct by the state,” DeToto said.

The Harris County District Attorney’s Office declined to comment past denying that prosecutors were at fault for the loss of any evidence. At the time of the incident, the judge spoke with both parties’ lawyers at the bench and speculated that the garbage bag had possibly been thrown out by maintenance, according to court transcripts. She said it also could have been lost as the result of rotating court locations between the Harris County civil and criminal court buildings each week — which occurs because Hurricane Harvey flooded parts of the criminal building — and thus having to shuttle evidence between buildings.

“Defense lawyers are once again lying to the public and potential jurors about the facts in the horrific murders of Dawn Armstrong and her husband, Antonio Armstrong Sr.,” spokesman Dane Schiller said in a written statement. “Last April, the judge determined that any loss of evidence was ‘obviously, no fault of either party.’”

That garbage bag of evidence — stated at the time to contain Armstrong’s cell phone — got lost in April 2019 mid-trial, according to court proceedings. Attorneys spoke quietly while conferring at the bench over the issue in April, and it was never made clear what the bag contained until December, when DeToto filed a motion to suppress transcripts of the thousands of text messages on the device.

Johnson issued a gag order and held a hearing Friday, during which prosecutors and defense attorneys met with her in a back room about the evidence, DeToto said Monday. During that conversation, prosecutors told the judge and defense that they made a list of 22 items that were in the lost bag following the conclusion of Armstrong’s trial, which ended in a hung jury, DeToto said.

Those items included the cell phone, shell casings, a gun case and swabs taken from the murder weapon, the attorney said, first reported by KTRK-TV. The gag order has since been lifted, but Johnson hasn’t made a decision on whether to suppress Armstrong’s cell phone records.

Because prosecutors allegedly had that information more than six months ago and didn’t make it known until days before the scheduled start of the new trial, DeToto said he believes his opponents violated the Michael Morton Act, as well as rules established by the 1963 U.S. Supreme Court decision Brady v. Maryland.

The Michael Morton Act requires state attorneys to hand over evidence to defendants and catalog that evidence. And as a result of Brady v. Maryland, prosecutors have to give defense attorneys any information that could show a client is innocent, plus any information that could call into question witnesses testifying against them.

This is the second time defense attorneys have claimed prosecutors improperly handled evidence. They previously accused prosecutors of concealing claims that his father was involved in a prostitution ring and received death threats.

Armstrong, who has maintained his innocence from the start,

was 16 when police say he gunned down his mother and father, who formerly played in the NFL.

Armstrong’s first trial lasted weeks but jurors ultimately couldn’t decide whether he murdered his parents, who also owned a small chain of fitness centers. They were found on July 29, 2016, fatally shot in their bed with pillows covering their faces. Police discovered a gun and a threatening message on the kitchen counter, but the home showed no signs of forced entry.

Investigators said they were certain Armstrong was the only possible culprit. He called authorities to report an intruder who shot his parents but deactivated the home’s alarm system to let Houston police inside. Doors and windows at the family’s three-story townhouse were also locked from the inside, according to testimony.

While he was a star athlete at school, Armstrong had troubles at home, prosecutors alleged. His parents caught him in multiple lies, and he had been disciplined for marijuana use. He also got kicked out of The Kinkaid School because of poor grades and was transferring to Lamar High School, where he likely wouldn’t have started on the football team, witnesses said.

Armstrong’s attorneys were successful in the first trial in casting reasonable doubt in the case, citing a lack of direct evidence tying the teen to the crime. An alarm expert testified that the home security system wasn’t reliable, and family members said that many people had access to the garage through a keypad.

Defense lawyers said an intruder was to blame, possibly the Armstrong’s older brother.

Jury selection is scheduled to begin March 26. Armstrong faces life in prison with the possibility of parole after 40 years. Because he was a juvenile at the time of the killing, he would not be eligible for the death penalty.