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The Panola County courthouse.
Meredith Shamburger
Panola County assistant DA, accused of misconduct, loses job
By Meredith Shamburger mshamburger@panolawatchman.com
A Panola County prosecutor is no longer in her position after a finding of prosecutorial misconduct led to a mistrial in a recent sexual assault case.
Assistant District Attorney Katie Nielsen is accused of failing to properly investigate the criminal histories of two main witnesses for the prosecution — and telling court officials she had done so during at least three separate court appearances, according to court records.
Panola County District Attorney Danny Buck Davidson said Tuesday that Nielsen is no longer with his office. Davidson said he could not offer more details about the case.
"I can't comment on personnel matters," he said.
Nielsen was a longtime ADA in the Panola County District Attorney's Office, having worked there since 2014. She earned her law degree from Baylor University in 2001, according to her State Bar of Texas profile.
She was the prosecutor in an aggravated sexual assault case against Dean Paul Asbury, who is alleged to have sexually-assaulted a disabled person in April 2018. according to an indictment in the case. Asbury has been previously convicted of aggravated rape in Gregg County, according to court records in the case.
123rd District Judge LeAnn Rafferty declared a mistrial in Asbury's case based on prosecutorial misconduct on Oct. 17. Specifically, Rafferty's findings were:
the State lacked due diligence and was negligent
the State misrepresented facts to the Court on multiple occasions
the State failed to comply with a Court order and pronouncements of the Court
the State failed to provide requested material to the Defendant
the State failed to provide Defendant with material that it was constitutionally required to provide
123rd District Judge LeAnn Rafferty concluded in a letter to District Attorney Danny Buck Davidson after the mistrial ruling that "I found that the misconduct by the State of Texas was negligent, as your office admitted. The Court determined, as supported by the record, that no acts or omission of your office were intentional."
Court transcripts of hearings in the case, as well as correspondence, show that Asbury's attorney, Rick Berry, questioned the criminal histories of at least two main witnesses in the prosecution's case. Nielsen had previously told the court that she asked and no criminal histories were found. Berry, however, found that the witnesses did have criminal histories after the trial had started.
Berry, who is also the regional chair of the Texas Bar, protested at an Oct. 14 hearing, saying the omission of this information meant he could not adequately prepare a defense.
"Your Honor, I've been deceived this whole trial," Berry said, later adding "We were trying to seek justice and have a fair trial. Obviously that was not capable of being done in this situation, because no matter what happened, we could not proceed with this case because of what appears to be either a conscious pattern of deceit and deception by the District Attorney's office, and all they had to do was give it to me."
Rafferty took Nielsen to task in court that day, even telling a witness during questioning "It's my job to make sure it's right, and I don't believe that everybody is playing fair."
Citing a Sept. 20 hearing, Rafferty asked Nielsen if she stood by her testimony.
"You then state, "Other than that, the victim has no criminal history. His brother has no criminal history. Our main witness has no criminal history. The pastor has no criminal history.' Are you still standing by that, Ms. Nielsen?"
"Ma'am, I relied on what I had in front of me, and if I misspoke and said, 'I ran it,' I ran it, because what I had in front of me was the criminal histories from the original packet...," Nielsen responded.
When Rafferty asked about a different witnesses's testimony, Nielsen said she may have misspoken.
"No, ma'am. That's not misspeaking," Rafferty said. "I asked you a question. I'm just saying, now are you — was your testimony then incorrect?"
"It must have been," Nielsen said. "They have a better recollection of what we talk about. I speak —"
"Ma'am, OK, again, you're not taking responsibility for any of this, are you?" Rafferty asked.
"Well, yes," Nielsen said.
Later during that same hearing, Rafferty said she was trying to decide how many times Nielsen misrepresented facts to the Court.
"That's what I'm trying to get at," Rafferty said. She did not do what she said she had done. She told me that she asked those witnesses, because I asked her if she asked them about their criminal histories and convictions, and she said 'Yes, I did.' She didn't ask them. I've never had someone, an attorney, make so many misrepresentations. I'm not going to turn you in to the Bar, but your conduct is sanctionable, and we'll discuss some of that later, in private."
Rafferty told Nielsen she had not done her due diligence in investigating her witnesses' criminal histories.
"You knew that those weren't enough," Rafferty said. "I'm not buying that. You went to an incredible law school. You are a very experienced lawyer. You didn't do your job. Five times we asked for this. Five times. You didn't do it."
The District Attorney's Office did not dispute that incorrect information was presented to the court. In an Oct. 2 response to a motion, Davidson said his office had concluded it was negligence and not diligent enough in providing information to Berry.
"However, this failure was not a deliberate attempt to suppress evidence. Rather, the assistant district attorney herself was unaware of the witnesses' arrest and conviction records," the motion said.
Davidson argued the evidence was also not material to the outcome of the case, therefore its suppression did not violate Asbury's constitutional rights and could not provide a basis for rejecting the jury's verdict.
At the Oct. 14 hearing, Assistant District Attorney Ric McPherson said they were looking into the situation and would make sure it didn't happen again.
"We have investigated it," he said. "We've tried, ourselves, to figure out what's gone on. We hear you. We hear exactly what you're saying, and I guarantee you that us, the attorneys in our office, our staff, we're going to have a hard look at this. This ain't gonna happen again."
McPherson also praised Nielsen as an "honorable and honest person."
"One thing I aspire to do in this job is bring the same zeal and passion to it that she brings. Now, did she mess up? Yes, she did. Is it bad? Yes, it's bad. Do I think that this should be what she is remembered for, for all time? I don't want to be remembered for the worst thing I've done, and I don't deserve to be remembered for the best thing I've done."
McPherson said Nielsen's actions were not in line with what he knew and respected about her and her work. He also argued that the convictions at issue would not have been grounds for impeachment.
"I don't think that she knowingly — it was not diligent, and it was negligent, but I don't think that she knowingly was trying to keep Mr. Berry from having material to help prepare his defense," McPherson said.
Rafferty told officials she was issuing a mistrial because, based on the facts, she was "100 percent sure this case would be reversed upon appeal."
Carthage native Meredith Shamburger has worked for the Panola Watchman since 2018. Before that, she worked at sister papers in Longview and Marshall; the Dallas Morning News; and The Daily Voice, a hyperlocal news company in Westchester County, New York.
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