Harris DA's office responds to allegations of withholding evidence

Prosecutors at the Harris County District Attorney's Office on Tuesday said they did not know the FBI paid three witnesses who testified in a murder case, officially denying allegations of prosecutorial misconduct leveled by a defense attorney last month.

Attorney Paul Morgan said in September that murder charges against 49-year-old Vernon Brooks should be dropped because prosecutors withheld information about paying three witnesses a total of $5,000 after they testified in a related trial in February.

In a 35-page brief filed Tuesday, prosecutors said the witnesses were given one-time payments to relocate because their lives had been threatened for testifying against members of the Aryan Brotherhood of Texas in that February trial. They are also scheduled to testify when a second suspect in the deadly shooting goes to trial early next year.

Sarah Mickelson Seeley, the initial prosecutor in both cases, said she did not know the payments were made.

"I understood from (the FBI special agent) that he intended to seek approval from his superiors to release federal funds because the three witnesses had been threatened by the ABT," Seeley said in a sworn affidavit attached to the brief. "I did not receive any further communication to indicate that (the special agent) had successfully obtained the funds he requested to help the three witnesses relocate and change their contact information or that he had dispersed the money."

In the underlying case, Brooks and another man, Joseph Bailey, were charged with murder in the death of Sergio Saldana in Baytown on Sept. 25, 2012.

Three of their confederates testified against Bailey and are scheduled to testify against Brooks.

Seeley was the original prosecutor, but the case was reassigned after she was promoted. Another prosecutor took over the pending case against Brooks.

Attorneys for Bailey and Brooks accused Seeley of withholding information about the benefits the witnesses would receive, which the lawyers are legally entitled to know.

In the brief filed Tuesday, the Harris County District Attorney's Office said it had no way to know that a federal agency had doled out money to the witnesses.

"To paraphrase Texas case law, state actors do not control federal actions," according to the brief. "Neither the Harris County District Attorney's Office nor the Baytown Police Department had any control of FBI funds or the FBI's sharing of information kept in its control."

Morgan, the lawyer for Brooks, learned of the payments through his own investigation over the summer and confronted prosecutors, who confirmed it in September.

On Tuesday, Morgan scoffed at the explanation.

"They handed all of these witnesses' cash. That doesn't really sound like 'relocation expenses' to me," Morgan said. "If witnesses got paid, I should have been notified. I shouldn't have to break heaven and hell to find these payments."

Morgan also said he believes the prosecutors should have checked on whether witnesses were paid between the trials.

"If someone hinted that witnesses were going to be paid, (Seeley) should have done due diligence and followed up on that," Morgan said.

Lana Gordon, the lawyer representing Bailey in his pending appeal, said she is reviewing Tuesday's filing and will confer with her client on how to proceed in his case.

A spokeswoman for the FBI declined to answer questions about how often witnesses are paid to relocate.

"It would be inappropriate for the FBI to comment at this time, as the matter is currently pending before a Harris County court," Shauna Dunlap said in an email. "I will refer you to the public record filings in the case and the ongoing court proceedings."