Texas Lawyer

Disciplinary Suit Filed Against Former Prosecutor in Murder Case

Mary Alice Robbins
Texas Lawyer

An Abilene judge will see the judicial system from a different perspective as the defendant in a disciplinary suit brought by the Commission for Lawyer Discipline, an arm of the State Bar of Texas.

Robert Harper, who now sits on the Taylor County Court-at-Law No. 1 bench, faces the possibility of disbarment, suspension or a public reprimand for allegedly failing to turn over evidence material to the defense before a 2002 trial in an Abilene murder case. Harper was the assistant district attorney who originally prosecuted the case.

A judge could find there is insufficient evidence against Harper and dismiss the suit.

The commission presented the allegation against Harper in its petition in Commission for Lawyer Discipline v. Harper, filed with the Texas Supreme Court last month.

"Our contention is that Judge Harper did not commit professional misconduct," says Steven L. Lee, Harper's attorney. Lee, a shareholder (in Austin's Lione & Lee, declines further (comment about the disciplinary suit. Harper (also declines comment.

The allegation against Harper stems from a complaint that James Masonheimer, the defendant in an Abilene murder case, filed with the State Bar's Office of the Chief Disciplinary Counsel in September 2003.

Mark Pinckard, spokesman for the State Bar's Office of the Chief Disciplinary Counsel, says that in May, the State Bar District 16B Grievance Committee found "just cause" to believe that Harper and District Attorney James Eidson had committed professional misconduct in Masonheimer's case.

However, Pinckard says the Commission for Lawyer Discipline voted in June not to pursue a disciplinary action against Eidson. "They didn't feel they had the evidence to support the allegation," Pinckard says.

Mark White, chairman of the commission and a partner in Amarillo's Sprouse, Smith & Rowley, did not return two telephone calls seeking comment before presstime on Aug. 5.

"I was confident all along that I was going to prevail and that there was a possibility that the petition would not be filed," Eidson says. "I was not directly involved in the case. I learned of all of these accusations and issues after everybody else did."

Pinckard says Harper opted to have the disciplinary suit heard in a district court rather than by a State Bar evidentiary panel.

The Supreme Court will appoint a judge from outside the judicial administrative region in which Harper lives to preside over the case, Pinckard says. Although either the commission or Harper can request a jury trial, neither has done so yet.

Second Mistrial

Masonheimer's murder case twice ended in a mistrial. The commission's allegation against Harper is based on a visiting judge's finding in the second trial that prosecutors withheld evidence from the defense that would have been favorable to Masonheimer.

The commission alleges in its petition that while Harper was lead prosecutor on Masonheimer's murder case, the Taylor County District Attorney's Office received information from a witness that the victim, Gilbert "Bo" Sanchez, allegedly used steroids that affected Sanchez's behavior. Neither Harper nor anyone on his prosecution team provided the information to Masonheimer's defense attorneys in a timely manner, the commission alleges in the petition.

"Such evidence would have been exculpatory or at least mitigating in deciding Masonheimer's punishment," the commission alleges in the petition. "Masonheimer's defense had been that he shot Sanchez for allegedly threatening his [Masonheimer's] daughter."

Sanchez was a former boyfriend of Masonheimer's daughter, Lucy Williams. William L. "Dub" Burke Jr. and William L. "Tres" Burke III, Masonheimer's defense attorneys and shareholders in Abilene's Burke & Burke, had contended that Sanchez may have used steroids that caused him to fly into rages. [See "A Second Mistrial in Abilene Murder Case," Texas Lawyer, May 5, 2003, page 5.]

The commission alleges that Harper's acts and/or omissions, as described in the petition, constitute conduct that violates Rules 3.04(a), 3.09(d) and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct. The rules cited address obstruction of a party's access to evidence, failure to timely disclose to the defense all evidence that tends to mitigate the offense with which a person is charged and obstruction of justice.

State Bar assistant disciplinary counsel DeAnne Claire of Dallas, who signed the petition that the commission filed against Harper, did not return two telephone calls seeking comment before presstime.

Last year, Senior Judge Billy John Edwards declared a second mistrial in State v. Masonheimer after finding that the Taylor County District Attorney's Office engaged in "reckless conduct" in the case. According to a transcript of the April 24, 2003, proceeding, Edwards found that prosecutors violated the due-process clauses of the Texas and U.S. constitutions when they did not provide exculpatory evidence to the defense prior to Masonheimer's first trial, which ended when 104th District Judge Lee Hamilton declared a mistrial in December 2002.

Hamilton ordered the first mistrial based on the defense's motion alleging that a lack of continuity and lengthy recess denied Masonheimer a fair trial.

Masonheimer, who is accused of shooting Sanchez five times in June 2001, pleaded no contest to the murder charge during an April 21, 2003, plea hearing before Edwards. Masonheimer did not sign a stipulation admitting guilt. Dan Joiner, an assistant district attorney who succeeded Harper as lead prosecutor on Masonheimer's case, says he learned on the day that Masonheimer entered the plea that a witness had told an investigator prior to the first trial that the witness had found steroids in Sanchez's property. Joiner says he notified the defense lawyers on April 22, 2003, that there was evidence that appeared to link Sanchez to steroid use.

As alleged in the commission's petition in the disciplinary action, Steve Clappart, an investigator in the DA's office, testified at Masonheimer's punishment hearing on April 23, 2003, that prior to the first trial, a witness informed the prosecution team of Sanchez's suspected involvement with steroid use during a meeting in Harper's office and that Harper was present at the meeting.

As noted in the petition, Harper was the lead prosecutor in Masonheimer's case but did not participate in the second week of the first trial and had left the DA's office to assume his duties as a judge before the second trial in April 2003. Taylor County voters elected Harper to the court-at-law bench in 2002.

As the Commission on Lawyer Discipline prepares its case against Harper, Taylor County prosecutors are trying to persuade a state appeals court to let them try Masonheimer for a third time.

Joiner says Edwards ruled that double jeopardy applied to Masonheimer's case and that Masonheimer could not be tried again on the same charge. Prosecutors appealed Edwards' ruling to the 11th Court of Appeals in Eastland, where the case is pending, Joiner says.

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