In change, Innocence Project goes to bat for Texas prosecutor


Corpus Christi prosecutor says he was fired for refusing an illegal order to hide evidence from a defendant.

Innocence Project says former prosecutor should be allowed to sue the government for improper firing.

The Innocence Project, which has helped gain freedom for Michael Morton and about 200 others who were wrongly convicted, broke new ground Tuesday when it came to the defense of a Texas prosecutor who says he was fired for disobeying an illegal order to hide evidence from a defendant.

Known more for fighting prosecutors, Innocence Project lawyers decided to support Eric Hillman because they believe he unfairly lost his job as an assistant district attorney in Corpus Christi for doing the right thing.

Compounding that unfairness, the lawyers told the Texas Supreme Court in a brief filed Tuesday, Hillman’s lawsuit challenging his termination was thrown out because he was a government employee — denying him the same day in court that is available to private-sector workers fired for refusing to break the law.

The organization’s lawyers asked the Supreme Court to reinstate Hillman’s lawsuit, arguing that the stakes go far beyond Hillman’s ability to sue for wrongful termination.

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The way Hillman was treated — by the Nueces County bosses who fired him and by the courts that dismissed his lawsuit — threatens to undermine the progress that has made Texas a national leader in protecting against innocent people being convicted of crimes, said Nina Morrison, senior staff attorney for the Innocence Project.

“This is a critically important case that puts to the test all the hard work people in Texas have done to fix the system since the Michael Morton case” — including a law named for Morton that requires prosecutors to ensure that all favorable evidence is turned over to defendants before trial, Morrison told the American-Statesman.

‘Lives, liberty’ at stake

Morton spent almost 25 years in prison for the murder of his wife, Christine, in their Williamson County home. After DNA tests linked the crime to another man and Morton was freed in 2011, it was revealed that the prosecutor in his case had hid several pieces of evidence that could have raised questions about his guilt.

The Legislature responded in 2013 with the Michael Morton Act, which codified in state law a longtime legal standard requiring prosecutors to turn over favorable evidence to defendants.

Allowing Hillman to be fired for following the Morton Act’s requirements — then prohibiting him from holding his supervisors accountable by filing a lawsuit — would eviscerate the state law and allow future retaliation against conscientious prosecutors like Hillman, the Innocence Project lawyers told the court.

“As the Morton case and countless others have shown, wrongful convictions jeopardize nothing less than the lives, liberty and public safety of Texas citizens,” they said.

Lawyers for Nueces County and former District Attorney Mark Skurka, who were sued by Hillman, urged the Supreme Court to reject the appeal, arguing that the case is about whether government employees can sue over alleged employment violations and that its outcome will have no impact on how the Morton Act is followed or enforced.

“The Michael Morton Act protects the rights of criminal defendants, not the governmental employees tasked with complying with the act,” they told the court.

Fired on day of trial

The legal clash goes back to the prosecution of David Sims on charges of intoxication assault and leaving the scene of an accident in 2013. According to court records, Hillman found a witness who was not in the police report and who said Sims was not drunk at the time of the accident, but a supervisor ordered him to keep the information about the witness to himself, saying it did not have to be turned over to defense lawyers because it came from his independent investigation.

After consulting with experts in legal ethics who disagreed, Hillman disclosed the witness and was fired on the day Sims’ trial was to start for refusing to follow orders, his lawsuit said.

That lawsuit, however, was thrown out by a trial judge and a state appeals court, both of which ruled that Nueces County could not be sued because it is protected by immunity, a legal concept that shields many government decisions from lawsuits as a way to protect public tax dollars.

In his bid to reinstate the lawsuit, Hillman pointed to a 1985 Texas Supreme Court ruling known as Sabine Pilot Service v. Hauck, which created a notable exception to Texas’ status as an at-will state that allows employees to be fired for almost any reason — unless that reason is retaliation for failing to perform an illegal act.

Lawyers for Nueces County argued that Sabine Pilot applied only to lawsuits by private-sector employees. It might not be fair to deny similar protections to government workers, they acknowledged, but immunity is designed to serve a higher purpose — protecting public money that is intended to benefit the community and not individual members of the public.

It its brief filed Tuesday, the Innocence Project argued that it is time to extend Sabine Pilot protections to government workers, particularly prosecutors who might face pressure to ignore their legal and ethical duties to share favorable evidence with defendants.

“If this court does not act, Hillman and others like him will face an intolerable ‘Hobson’s choice’ between their employment on the one hand, and potentially losing their law licenses and facing criminal prosecution on the other,” they said.

The Supreme Court has no deadline on deciding whether to accept Hillman’s appeal or reject it and let stand the lower-court rulings that tossed out his lawsuit.

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