Pubdate: Fri,  9 May 2003
Source: Dallas Morning News (TX)
Copyright: 2003 The Dallas Morning News
Contact:  http://www.dallasnews.com/
Details: http://www.mapinc.org/media/117
Author: David Sedeno, The Dallas Morning News
Bookmark: http://www.mapinc.org/tulia.htm (Tulia, Texas)

FILING FAULTS DA IN TULIA DRUG CASES

Prosecutor Knew Undercover Agent Wasn't Credible, Attorneys Say

The Swisher County prosecutor who got drug convictions against 38 
defendants in Tulia knew that a key witness, undercover agent Tom Coleman, 
was not credible but aggressively pursued the cases anyway, court documents 
urging dismissal of all the convictions argue.

The filing states that District Attorney Terry McEachern gave conflicting 
accounts - during the original trials and again during a deposition before 
a special hearing in March called to review the convictions. He testified 
about when he became aware of negative information about Mr. Coleman's 
past, including his arrest on a theft charge from Cochran County.

The 129-page court filing is part of a recommendation to the Texas Court of 
Criminal Appeals to dismiss all the convictions. The documents were 
prepared by special prosecutors and attorneys for the 38 defendants and 
signed by retired state District Judge Ron Chapman of Dallas County, 
appointed to review the cases.

"The findings are very significant because they make clear that the 
constitutional violations related not only to Coleman but to the entire 
prosecution team," Mitch Zamoff, an attorney for one of the defendants, 
said Thursday. "Although [Judge Chapman] found Coleman to be totally 
unbelievable, it is clear that this case is about more than just one rogue 
police officer."

Mr. McEachern could not be reached for comment on Thursday. His assistant 
in Plainview said the district attorney was at a prosecutors' conference.

Defense attorneys and special prosecutors have declined to address whether 
prosecutorial misconduct charges could be filed against Mr. McEachern or 
others on his team, saying only that prosecutors usually have general 
immunity when pursuing cases.

The Department of Justice and the state attorney general's office are 
investigating the case for civil rights violations. Thirty-five of those 
convicted are black.

The court documents submitted to the Texas Court of Criminal Appeals this 
week officially ask that the cases against the 38 defendants be dismissed 
because Mr. Coleman was racially biased, a "liar" and had been arrested for 
a crime, and thus was not credible. Because the convictions in 1999 and 
2000 hinged solely on Mr. Coleman's investigation and testimony, there 
would be no convictions, the court filing argued.

"Without Coleman's testimony, the State could not have secured a conviction 
against any of the Applicants," the filing read.

Release of 13 sought

Thirteen of the 38 defendants remain in prison, but special prosecutors 
have said they would not pursue retrials if the appeals court dismisses the 
cases. On Thursday, state Sen. John Whitmire, D-Houston, introduced a bill 
that would release the 13 on bond through Swisher County courts pending the 
higher court decision. "Allowing them to remain incarcerated any longer 
will only serve to undermine public confidence in our system of justice," 
said Mr. Whitmire, whose legislation will come up for a committee hearing 
on Monday.

The court filing - signed by Judge Chapman, special prosecutors and defense 
attorneys - focused its dismissal recommendation on Mr. Coleman's actions.

The documents, however, also indicate that Mr. McEachern and other law 
enforcement officials knew there were problems with Mr. Coleman's past and 
his ability to do his job. It said that the prosecution team covered for 
Mr. Coleman and did not provide negative information about Mr. Coleman to 
defense attorneys.

The filing indicates that Mr. McEachern knew about Mr. Coleman's personal 
and legal problems in July 1999, about three days before convening a grand 
jury that eventually would return more than 40 indictments in the narcotics 
investigation.

In a pretrial hearing in one of the cases in December 1999, however, Mr. 
McEachern said that he did not run criminal histories on police officers 
because "police officers don't have, you know, can't have a criminal 
record, so I don't see running them."

Previous arrest

Mr. Coleman, who has been indicted on three counts of perjury, was 
previously arrested in Swisher County during the middle of his drug 
investigation on a charge of stealing gasoline in Cochran County, where he 
previously worked as a deputy sheriff. He was accused of using a county 
credit card to buy gasoline for personal use. He said during a hearing last 
March that the charge was bogus and was meant to pressure him to pay $7,000 
he owed Cochran County merchants. After he made restitution to the 
merchants, the theft charges were dismissed.

Attorneys for the Tulia defendants have argued that Mr. Coleman would have 
lost his peace officer's license because of his arrest and thus all the 
cases before and after the arrest would have been tainted. The court 
documents also note that prosecutors, Swisher County Sheriff Larry Stewart 
and Mr. Coleman's supervisors at the Panhandle Regional Narcotics Task 
Force protected Mr. Coleman and did not properly supervise him.

The latest court documents also indicate that Sheriff Stewart and Mr. 
Coleman's supervisor at the task force failed to follow proper procedure in 
August 1998 when they arrested Mr. Coleman on the theft charge.

Mr. Coleman was arrested on a county road and never appeared before a 
magistrate to have bond set.

"The methods used by Sheriff Stewart and other members of the Swisher 
County Sheriff's office regarding the arrest and release on bond of Coleman 
on the Cochran County warrant were used to conceal it from public knowledge 
and possibly were in violation of the Texas Code of Criminal Procedure," 
the court document stated.

During a trial for one Tulia defendant in January 2000, the court documents 
said, Mr. McEachern stated that "he personally participated in Coleman's 
background check," but during a deposition in March he denied "any such 
participation."

At a trial for another defendant in July 2000, Mr. McEachern continued to 
support Mr. Coleman, who was named the state's outstanding law officer that 
year.

"We brought forth the outstanding ... law enforcement officer of the year," 
Mr. McEachern was quoted as saying. "If you can't believe him, well, then 
who can you believe?"
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