December 2, 2014
By Stephanie Frazier
Panola County District Attorney Danny Buck Davidson received a letter today from the Nugent family demanding that he recuse himself from the forthcoming sentencing hearing for convicted murderer Bernie Tiede.
The family says Davidson has a conflict of interest and he lacks impartiality.
The full letter:
Dear Mr. Davidson:
As you know, I represent Rod Nugent, the only child of Marjorie M. Nugent, and his four children. You will recall my June 17, 2014 letter through which Ms. Nugent's family sought to obtain information from you relating to the habeas corpus proceeding. We were disappointed you did not respond to that letter.
The family of Ms. Nugent asked me to send this letter to request that you recuse yourself and your office from representing the State of Texas in Mr. Tiede's new sentencing trial for his murder conviction. The family further requests that you ask the trial court to appoint an assistant attorney general to represent the State in that matter.
Article 2.07(b) of the Texas Code of Criminal Procedure permits you to recuse yourself and your office even if you are not otherwise disqualified. Article 2.07(f) of the Code authorizes an assistant attorney general to serve as the prosecuting attorney. Texas law imposes upon prosecuting attorneys the duty to "avoid conflicts of interest and even the appearance of impropriety by deciding not to participate in certain cases." Coleman v. State, 246 S.W.3 76, 81 (Tex. Crim. App. 2008).
We are concerned about your objectivity and the possibility that you may have violated ethical rules governing prosecuting attorneys in your zeal to see Mr, Tiede released from prison. Our concerns about your objectivity are based on your well-known interactions with Richard Linklater and others associated with the movie "Bernie" your recent published statements and activities, and evidence in the possession of the Panola County Sheriff's Office — evidence you failed to disclose to the tribunal considering Mr. Tiede's habeas corpus application and endeavor to hide from the public.
Simply put, we believe your recusal is absolutely essential and required by applicable ethical rules.
Here are just a few examples of facts leading us to these conclusions:
1. You made the following statement to the Palestine Rotary Club in August 2013:
"She (Ms. Nugent) was killed in November and discovered the next August. Now, what do we have during that time period? We got Thanksgiving, Christmas, Mother's Day, her birthday. ... Her family was not looking for her, but they got real mad when they found out he'd spent a bunch of her money after her death — about $6 million worth."
These statements show your inappropriate and disrespectful attitude toward my clients, your lack of concern for the victims of Tiede's crime, and your current bias in favor of Tiede. In fact, these statements likely constitute legal slander against the victims in this case. Likewise, although you are not hesitant to disclose in a public forum (that) you have evidence showing Tiede stole about $6 million (from Ms, Nugent) after her death," you go to great lengths to avoid allowing that evidence to be released to the Nugent family or to the public.
2. Variety Newspaper stated the following in an article published on June 25, 2014:
"What didn't get reported immediately was the fact that Tiede's release marked the culmination of a roughly two-year concerted effort by Linklater and others — chiefly Danny Buck Davidson, the district attorney who prosecuted Tiede for the 1996 murder of his 8l-year-old companion, Marjorie Nugent. ... Their goal - to reduce Tiede's sentence to time served (17 years) in light of new facts dug up by Jodi Cole, a local attorney who became intrigued by the case after seeing 'Bernie' and discussing it with Linklater at the film's Austin premiere."
We were shocked to learn that you had been working in tandem with Tiede's defense team for over two years to obtain his release. This certainly shows a conflict of interest in your continuing to serve as the prosecutor. Moreover, you took these actions without any notice to my clients. (Although we would have preferred to obtain information directly from you or your office, your refusal to engage in any communications with the Nugent family has resulted in our having to rely on third-party sources for a portion of our information.)
3. Hearing on Writ of Habeas Corpus, Page 32, Lines 12 -13; and Page 33, Line 10 through Page 34, Line 2:
MR. DAVIDSON: Your Honor, at this time, I would like to read into the record my affidavit that has been filed. I did not know that Mr. Tiede had been sexually abused as a child, and I did not know the extent of the decedent's encroachments on his reasonable boundaries. These issues are thoroughly explained in Mr. Tiede's latest psychiatric evaluations. In consideration of the opinion and affidavit of my punishment expert Dr. Edward Brown Gripon, M.D., the psychiatric evaluation of Dr. Richard Pesikoff, the new mitigating evidence presented by the defense, and my own independent investigation, I have made new, fully informed assessments of the circumstances surrounding the shooting event and Mr, Tiede's lack of future dangerousness. I now feel that a life sentence is an inappropriate sentence for Mr. Tiede."
Because Dr. Gripon did not evaluate Tiede for you a second time until Jan. 24, 2014, and did not provide you his report until after that, based on this affidavit testimony, you did not make your new "fully informed assessment of the circumstances" until at least January 2014. And yet, as discussed above, you allegedly were engaged in a "concerted effort" with the defense team to obtain the release for Tiede "for over two years." Accordingly, (you) worked for Tiede's release long before you had any "evidence" to support that effort. This establishes both a conflict of interest and a lack of candor toward the tribunal.
4. Hearing on Writ of Habeas Corpus, Page 8, Lines 12-18:
THE COURT: Mr. Davidson, the Findings of Fact and Conclusions of Law bear your signature.
MR. DAVIDSON: Yes, it does.
THE COURT: So, you are not opposing those Findings of Fact and Conclusions of Law?
MR. DAVIDSON: No, Your Honor.
The fact that you represented to the trial court that the Findings of Fact and Conclusions of Law proposed by Tiede's defense team are wholly accurate demonstrates your lack of desire and inability to properly serve as the prosecutor in this matter. As shown below, an independent attorney retained by Panola Sheriff Kevin Lake acknowledges you have evidence which should be used to question Tiede's new and unchallenged allegations of child abuse and untested opinions of the experts who rely entirely on Tiede's unchallenged allegations and self-serving statements. Instead of using that evidence, you simply stipulated to the trial court that every finding of fact and conclusion espoused by Tiede and his defense team are established and true.
5. Hearing on Writ of Habeas corpus, Page 10, Lines-13:
THE COURT: OK, as far as victim notification of these proceedings, I didn't go over that earlier and I should have. Mr. Davidson?
MR. DAVIDSON: Your Honor, I do not see any of the victims here, but they have been notified.
THE COURT: They have been notified and know about these proceedings?
MR. DAVIDSON: Yes, ma'am.
This was an outright falsehood, and violated your ethical requirement of candor toward the tribunal. As you fully know, neither you nor your office made any effort to contact Ms. Nugent's family about these new proceedings either before they began, or afterward.
6. Hearing on Writ of Habeas Corpus, Page 34 Lines 1-7:
"Therefore I am agreeable to considering his sentence to be time served. If the Appellate Court grants his Motion for Habeas Corpus Relief and he is re-sentenced and released from prison he will be a convicted felon who has served almost 17 years behind bars for murder."
This statement demonstrates your lack of objectivity. Tiede's sentence should be decided by a jury of his peers — not your unilateral decision as to what is enough time. Having already undermined the first jury's decision, you now are attempting to usurp the role of a second jury.
7. Statements in October 10, 2004 letter to The Honorable Greg Abbott from Robert Underwood, Esq. as attorney for Panola County Sheriff Kevin Lake:
"This information is also relevant to the specific investigation and prosecution in the possible new punishment trial in the murder case since Tiede acted in a knowing deceptive course of conduct over several months by withdrawing large sums of money and spending or giving it away. This conduct may be relevant to explain why Tiede murdered her and hid her body in a freezer. The concealment of the body and deception in the withdrawals appears contradictory to the 'sudden passion/emotion' as stated on page 11 paragraph 64 of the Findings of Fact of the Trial Court.
"The deceptive conduct and deliberate acts of Tiede for a period of nine (9) months after the murder is relevant to prove the intentional murder and to rebut or counter the "new evidence" which arose in the Writ Hearing. The information withheld contains dear evidence of this conduct after the murder' (Emphasis added)."
Based on your published statements to the Palestine Rotary Club, apparently the evidence shows withdraws of money of approximately $6 million. As stated before, this shows that you have access to evidence that is "contradictory to the "sudden passion/emotion'" argument, and additional evidence that "rebut(s) or counter(s) the new evidence which you represented to the trial court at the habeas hearing as being established feet. This further demonstrates your bias, conflict of interest, lack of candor with the trial court, and inability to continue to serve as the prosecuting attorney in this matter.
Additionally the information withheld contains evidence of the expenses and expenditures spent by Tiede and Marjorie Nugent prior to the murder. This evidence is relevant to rebut the alleged "verbal abuse" Tiede was subjected to by Nugent which is cited in the Findings of Fact, Conclusions of Law, Recommendations and Order on Page S paragraph No. 26, and the "deteriorated" relationship cited on page 8, paragraph U44. Evidence of the amount of money being spent can explain some of the "new evidence" arising from the writ."
The collection of 76 tapes taken as a whole is relevant information to a cross examination of Tiede or the reputation witnesses or direct or cross or expert opinion testimony from behavioral or mental experts in the punishment sentencing phase of a criminal trial for a brutal murder of an elderly woman or for theft of a large sum of money from an elderly woman with deception over a long period of time. It is the overall nature or theme of the tapes which is relevant. The past behavioral and mental issues are extremely relevant evidence in a new punishment trial.
Neither the testimony nor the affidavits or reports of the mental health experts relied upon for the Tiede habeas application include any mention of these tapes. Because of your concerted effort to help the defense team obtain the release of Tiede, you wholly failed to provide this evidence to the experts upon whom Tiede relied for his writ to consider when evaluating him, and failed to use them in cross examining those experts to test their conclusions.
Amazingly, the credibility of Tiede and his newly asserted facts have also not been tested by cross-examination with the use of these tapes.
The fact is that it is unlikely that anyone outside of your office or the Panola County Sheriff's Office would have even known of the existence of the evidence Mr. Underwood identifies unless Ms. Nugent's family had tendered an open records request.
8. There are published reports of your attendance at the premier of the movie "Bernie" and multiple photos of you and Mr. Linklater. Your relationship with people associated with the movie calls into question your objectivity and creates, at a minimum, an appearance of impropriety.
9. Jury members who convicted and sentenced Tiede have made clear that, contrary to your claims, the purported new information would not have affected the sentence:
"He confessed that he did it. We found him guilty. In the punishment phase we gave him a life sentence, that's the max you can give him. It was pretty much of cut-and-dry case. He killed a lady and put her in a freezer. Him getting out under these circumstances, I don't think is right."
"I just found it to be unjust because I was one of the jurors, and it was hard for me to try that case. I was looking at the evidence I had seen, and for it to be turned around like it did just doesn't seem fair."
"It would bother me no matter who he's living with. But probably if this movie hadn't come about, would he be going through this? I doubt it."
"That concerns me, because if he did it once, there is a chance he can do it again. If anyone snapped to the point that he could take an innocent bystander's life ... they can do it again."
"I think he should have had the death penalty, but that was not an option for the jury. He should serve the remainder of his term."
"It wouldn't have changed my mind. That lady was 40 years older than he was. I don't think that had anything to do with his childhood."
"To me, he can say it was because he was abused as a child, but I truly feel it was because of much more than that. I truly think it was her money,"
Every juror who was willing to be interviewed strongly opposes your switching sides.
Finally, your role during the habeas hearing demonstrates the need for your recusal. In the hearing, your role as an advocate for Tiede's release is clearly demonstrated. Your affidavit testimony shows that you have no intention of challenging the testimony of Tiede's newly found experts or even Tiede's own self-serving statements upon which his new experts rely. In fact, you tendered the testimony of your own expert to support Tiede's motion.
As stated before, in direct conflict to your position during the habeas hearing, the attorney retained to represent Panola County Sheriff Kevin Lake argued against releasing certain items to the Nugent family because those items constitute evidence which is contrary to Tiede's "evidence" supporting his motion. You had this evidence at the time of the habeas hearing, but for some reason decided not to use it to challenge that motion. This leads us to believe that you will use the same tactic during the new trial on sentencing. In fact, your express statements and actions demonstrate that is precisely what you intend.
In spite of your personal beliefs relating to whether Tiede has been punished enough for his murder of and theft from Ms. Nugent, and regardless of your personal views and inappropriate judgments relating to my clients familial relationship with Ms. Nugent, don't you believe that the most appropriate step here would be to honor your previous jury's sentence, and Ms. Nugent's life with a recusal so that an independent prosecuting attorney can decide for him or herself how to objectively pursue the new trial and to challenge the testimony of the newly presented witnesses? We certainly hope so.
Would you provide me the privilege of a response this time? I would certainly appreciate if you would do so.
Johnny K. Merritt
Sprouse Shrader Smith P.C.
Attorneys at Law