by Richard Resch

In September 25, 2017, the State Bar of Texas filed a disciplinary action against former Harris County Assistant District Attorney Elizabeth A. Exley. She is accused of striking deals with three jailhouse informants in exchange for damaging testimony against Edward George McGregor without notifying his lawyer in the 2010 capital case. Additionally, she failed to correct the informants when they lied under oath at trial regarding critical aspects of their testimony, including whether they were testifying in exchange for leniency or other favorable treatment. Based largely on their perjured testimony, McGregor was convicted and sentenced to life in prison.

Last year, a Fort Bend County Court ruled that complaints of prosecutorial misconduct against Exley had merit and ordered a new trial for McGregor. 

Judge James Shoemake concluded that Exley knowingly permitted the trio of jailhouse informants to provide false testimony on the witness stand without correcting them. At the very least, all three lied about whether they were testifying in exchange for favorable treatment of some nature. Judge Shoemake determined that the false testimony provided by the three informants was material and that without it McGregor “would likely not have been convicted.”

The most egregious testimony was provided by a prisoner named Delores Gable who was serving a 90-year prison sentence for soliciting to commit murder. Virtually every single damning fact to which she testified was actually a complete and utter lie. During a subsequent habeas corpus hearing, Exley testified that she knew at the time Gable perjured herself that portions of her testimony were false, yet she failed to set the record straight.

Exley now finds herself in the role of defendant. The Bar’s Commission for Lawyer Discipline petition against her alleges that she “failed to disclose exculpatory evidence to the defense that the witnesses would receive or had received consideration in exchange for their testimony and allowed the witnesses to falsely testify to the contrary.” Basically, she stands accused of knowingly permitting three key witnesses to lie under oath in a capital case. The Commission is seeking reprimand, suspension, or disbarment.

According to Randy Schaffer, who served as McGregor’s defense lawyer, “This is a speck of sand on the beach of criminal cases. 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 was Schaffer’s complaint to the State Bar that triggered the investigation into Exley’s conduct. He points out that prosecutors are almost never prosecuted for presenting false testimony, and quite troublingly, there is no state statute making suppression of evidence by prosecutors a crime. Schaffer observes, “So where the criminal justice [system] has not taken any steps to make prosecutors accountable, the only remedy left is through the State Bar.”  

Sources: www.houstonpress.com, www.law360.com, www.texaslawyer.com

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