By Angela Morris, From Texas Lawyer

Williamson County District Attorney Jana Duty was sentenced to 10 days in jail and a $500 fine after a judge found that she was in contempt of court for violating a court order and disrespecting the judge in a capital murder case.

Duty was booked into the Williamson County Jail on Aug. 6 and immediately released on a personal recognizance bond pending her appeal of the decision.

Immediately after lawyers on both sides closed, Senior Judge Doug Shaver, who was appointed to preside over the 368th District Court for the contempt proceeding, announced that Duty was in contempt for “intentionally, knowingly and willfully” violating a gag order, failing to appear in court and disrespecting the court in a response and “veiled threats.”

Duty’s problems may not end with the contempt matter. Judith DeBerry and Beth Stevens, two assistant disciplinary counsel in the State Bar of Texas Office of Chief Disciplinary Counsel, both scribbled in notebooks during the entire 9 a.m. to 3 p.m. hearing. Stevens declined to comment about why they were there.

The contempt proceeding arose from Duty’s conduct in an underlying capital murder case, Texas v. Harmel, in which Kennon had issued two verbal gag orders in March and a written gag order in April. First assistant DA Mark Brunner requested the gag order, and he and Duty agreed to the order’s substance, with no objection from the defense lawyers. The gag order prevented parties, attorneys and attorneys’ employees from communicating about the case with the media or making public statements.

But then, in May, Duty emailed Austin American-Statesman reporter Claire Osborne to respond to an article on a defense motion that claimed Duty committed misconduct by withholding evidence in the case. Osborne quoted Duty.

Duty also emailed Kennon—without copying any other attorney in the case—to tell the judge that she was going to comment to defend herself, but wouldn’t discuss the facts of the case.

The next day, Kennon emailed all of the attorneys, asking them to come to court on May 8. Duty did not attend the meeting. Kennon sent Brunner to track her down, but she would not come. Later, Duty explained her reasoning in a long email to the judge, Brunner and the three defense attorneys in the case.

She wrote that she had asked Kennon about the reason for the hearing. The judge didn’t respond. The situation “reeked of disrespect,” she wrote.

“I felt, if you don’t respect me enough to give me the information I requested, I will not give you respect and show up. If you feel I need to be reprimanded for communicating with the Statesman, I understand. But making a public spectacle out of punishing me just hurts everyone. No one will come out unscathed. And if I am disciplined, I believe defense counsel should also be disciplined as their motion for continuance was drafted in such a way as to purposefully gain media interest (unnecessarily so) and so therefore violated the spirit of the gag order,” said Duty’s email.

Shortly afterward, Kennon filed a motion to hold Duty in contempt of court.

Duty’s Story

The hearing included testimony from Georgetown criminal appellate solo Kristen Jernigan, one of three defense lawyers in the underlying case. Kennon also took the stand, and so did Brunner. But the real revelations came when Duty testified for over an hour.

She wished she had a “do-over,” she said.

“I wish I would have listened to my husband, who told me, ‘Don’t hit send,'” Duty said about her email to the newspaper reporter.

The first trial in the Hormel case ended in a mistrial, with defense lawyers claiming that they hadn’t received a copy of a surveillance video that showed time stamps.

Perry Minton, co-counsel for Duty, noted that the defense lawyers had filed motions taking “shots” at the state, calling Duty out by name and accusing her of personally withholding evidence.

That was a “sensitive subject” because of the Michael Morton case and the history in Williamson County, said Minton.

Morton spent over 24 years in prison after he was wrongfully convicted on charges that he murdered his wife. DNA cleared him and located the real killer—who was also charged in a second murder that happened a couple of years after Morton’s wife died.

Ken Anderson, the DA who wrongfully prosecuted Morton in the 1980s, was later found in contempt of court for violating an order to turn over exculpatory evidence. Anderson—by then the 277th District Court judge—was sentenced to jail time, resigned his bench and gave up his law license.

Coincidentally, Duty’s contempt hearing was actually held in Anderson’s old courtroom.

The Morton case was a major campaign topic in Duty’s race against then-incumbent DA John Bradley, who fought Morton’s requests for DNA testing for six years.

Minton said that Duty had not withheld any evidence. The video with the time stamp, and the right video-player software to view the time stamp, had always been on a DVD given to the defense.

Minton said about Duty’s email to the Statesman reporter, “There was nothing about the facts of this case. There was nothing new about this case. There was nothing that was not in the public record put in the record by the defense team.”

He asked whether Duty felt she was coming “close to the line” of the gag order.

“I really didn’t think of it being close to the line,” Duty said. “I didn’t plan to discuss the facts of the case.”

She added, “I feel like there is hypocrisy here, because to be able to file a pleading and put all these nasty allegations in—in essence, you are getting around the gag order.”

The media then prints the allegations as “gospel,” said Duty.

She testified that on the morning of the May 8 hearing, her family had traveled from out of town to be with her.

“When I asked the judge to give me the purpose of the hearing, I was trying to gauge whether I really needed to be there,” Duty said. “I just figured I could get Mark [Brunner] to handle it.”

Cross-Examination

On cross-examination, special prosecutor Archie Carl Pierce asked Duty where in the verbal or written gag order it said that “you can talk to the media so long as it’s not about the facts of the case?”

Duty said, “That’s what those words—’the case’—mean: Don’t talk about the facts of the case. That’s the way I interpreted it.”

She said that her media comments discussed discovery, not the facts.

Pierce noted that Duty had emailed Kennon that she intended to comment. But she did not seek clarification about the scope of the gag order. As a lawyer, Duty would know to file a motion or pleading to seek relief or clarification about a gag order, he said.

“You intentionally chose not to take that route. Instead you intentionally chose to put your interpretation of the order and go forward and talk to the media,” Pierce said.

Duty replied, “It was my interpretation of the order, and I didn’t think I was violating it.”

Later, she added, “I don’t think any gag order in any form or fashion ever restrains someone from defending themselves against allegations of wrongdoing.”

Regarding the May 8 hearing, Pierce said that Duty intentionally decided not to attend.

He said, “We don’t have to guess about your reasoning on why you did not attend because you subsequently sent an email detailing your reason. … ‘I will not give you respect and show up.'”

Duty said that she shouldn’t have spoken to the judge in those terms, and in hindsight, she would take the words back.

Pierce said that Duty had copied her email to all of the other lawyers on the case.

“You have by your statements exhibited your disrespect for the court, and you communicated it to other people, which tends to diminish the respect for the court,” said Pierce.

Duty replied, “I would agree with that.”

IMAGE: Wilco DA Jana Duty – booking mugshot

For more on this story go to: http://www.texaslawyer.com/id=1202734261088/DA-Gets-10-Days-Jail-Time-for-Contempt-of-Court#ixzz3ibxDIQAJ