This is a story about a murder case from the mid 80's here in AL involving a member of the Alabama Bureau of Investgation. Drug CI's wife is murdered, the ABI set's it's sights on the ABI Agent and the CI, evidence withheld, cleared by three Grand Juries, then prosecutors threaten to throw people in jail if they don't change their testimony, the 4th Grand Jury with tainted testimony indicts and later convicted.
I personally think a new trial should be granted.
Don Valeska and the rules of justice
His bosses praise his aggressiveness, but defense attorneys say Assistant Attorney General Don Valeska is a rogue prosecutor who has withheld key evidence for decades
By Eric Fleischauer
DAILY Staff Writer
Defense lawyers who have faced Assistant Attorney General Don Valeska in court aren't surprised he withheld critical evidence in the Karen Tipton murder case. The only surprise, they said, was that this time he got caught.
Circuit Court Judge Glenn Thompson on March 21 overturned the capital murder conviction of Daniel Wade Moore and granted him a new trial after concluding the Valeska-led prosecution withheld key evidence from the defense. Allegations of similar conduct have followed 59-year-old Valeska throughout his career.
Valeska's bosses, past and present, praise him for an aggressive style of prosecution that consistently puts violent criminals behind bars. Defendants and their attorneys call Valeska a rogue prosecutor who values convictions more than justice.
Assistant attorney general
Usually wins case
One thing is sure. When he sets his sights on a suspect, Valeska usually wins.
Thompson overturned Moore's murder conviction and death sentence "based entirely upon the prosecution's failure to comply with this court's orders regarding discovery.
"The court finds that the prosecution's failure to comply with its discovery order constitutes an injustice to the defendant which cannot be tolerated," Thompson wrote.
Valeska did not return numerous calls to his office. He also did not respond to e-mails.
Just don't get caught
"His whole career has been hide the ball, don't play by the rules, don't play fair, and hope you don't get caught," said Robert Clark, a defense attorney in Mobile. "I don't know how many people are in prison now because he didn't get caught."
According to several attorneys whose clients are behind bars, this has been Valeska's modus operandi since 1972, when he began prosecuting cases as an assistant attorney general under Bill Baxley. Except for two years in the 1970s, when Valeska worked as an assistant district attorney in Mobile County, he has held onto his post through six consecutive attorneys general.
Former Attorney General Charles Graddick said Valeska's aggressiveness makes him good.
"Without a doubt, when I was his boss, criminal defense attorneys complained about him. He was aggressive and highly motivated. Frankly, I thought his aggressiveness was an asset," Graddick said.
Valeska's failure to provide required evidence in one murder case landed the wrong people in prison, according to many people familiar with the case.
Police discovered Dana Hart's decaying body March 14, 1985, in Butler County. The condition of her body was such that investigators could pinpoint neither the date nor the cause of her death.
Years later, Valeska took aim at two suspects: Dana Hart's husband of five months, Eddie Hart, and Alabama Bureau of Investigation agent Grady Gibson. Hart was an ABI informant who frequently worked with Gibson. Valeska argued Gibson and Hart murdered the woman for her life insurance.
Case hinged on assumption
Valeska's case hinged on an assumption that the murder occurred Feb. 28, 1985, because Hart and Gibson had solid alibis placing them hundreds of miles from the murder scene March 1 and thereafter.
Hart and Gibson are innocent, according to Clark, who represented Gibson. They are in prison, he believes, because Valeska hid evidence.
Clark said he would never have known Valeska was withholding evidence if someone hadn't stolen a copy of an investigative file and given it to him several years after the trial.
"There was all kinds of evidence in there the lying SOB didn't give me," Clark said.
Foreshadowing Valeska's prosecution of Moore in Morgan County, Clark said one of the concealed statements came from a witness who swore she saw the victim alive the day after Valeska claimed Clark's client killed her. If that statement is accurate, Clark said, it is impossible that his client committed the crime.
In one memo withheld from the defense, a forensic hypnotist stated he believed a witness accurately recalled seeing the victim, alive, on March 1, 1985. Another suppressed memo detailed work records of a witness who remembered Dana Hart stopped by while the witness was at home, sick. According to the witness' work records, that was on March 1. Undisputed evidence placed Gibson and Hart hundreds of miles away on March 1. If the witness was right, Gibson and Hart did not commit the murder.
In another memo Valeska withheld from defense attorneys, an ABI agent detailed a June 1985 conversation he had with Gibson's wife. She called to determine if a rumor that ABI was investigating Gibson for the murder was true.
The agent allayed her fears, according to the memo. "(I) told Cathy Gibson that the investigation indicated Grady and Eddie could not have been responsible for Dana's death. (I) stated that a witness placed Dana Hart alive in Montgomery on Friday morning, March 01, 1985, the same time Grady and Eddie were in Mobile."
Gibson is in St. Clair Correctional Facility serving a sentence of life without parole.
Hart's lawyer, McGowin Williamson of Greenville, said Valeska's failure to turn over memos stating Dana was still alive March 1 made all the difference in the trial.
"If somebody had given me that one piece of information, even as stupid as I was then, I would have won. The state's whole case rested on a time sequence that Valeska knew could not have happened," Will-iamson said.
Williamson said his client would have been released from prison years ago had he agreed to testify against Gibson.
"They've come to me a million and 12 times. Before the trial, after the jury began deliberations, after the conviction — Valeska and the ABI have consistently tried to get Eddie to testify against Grady. They'd let him out of jail today; they'd grant him parole. All he'd have to do is say, 'Grady killed her.' But he's never flinched. Not only did Eddie have nothing to do with it, he doesn't know anything about it," Williamson said.
Gibson filed a petition asking for a new trial based on newly discovered evidence two years ago. The judge has not ruled on it.
4 grand jury dates
Gibson's current lawyer, Mary Turner, said prosecutors took Gibson to a grand jury three times without obtaining an indictment. Prosecutors presented the case to a grand jury a fourth time after Gibson sued the state for harassment, she said. This time the grand jury returned an indictment.
Gibson passed an ABI-administered polygraph test before the indictment, but it was ruled inadmissible at trial.
Valeska hid evidence that, if presented to the jury, would have cleared Gibson, according to Turner. The victim's body was found with hair clutched in her hand. According to a forensic report withheld by Valeska, the hair did not come from Gibson, Hart, the victim or another suspect. That report, said Turner, made it clear that someone else killed Dana Hart.
At trial, without revealing the existence of the report, Valeska called the forensic expert to the stand. The expert testified the hair was "similar to" the victim's hair, a fact that left Gibson on the hook as a suspect.
Not knowing of a memo that revealed the hair samples did not come from the victim, attorneys could not point to the possibility that the hair was from a different person — the real killer, believes Clark.
"It's just dirty pool. Valeska's not about playing fair. He's only about winning, and that's not what a prosecutor should be," Turner said.
In an interview with THE DAILY in Elmore Correctional Facility, Hart said his wife was present for one of the undercover drug buys that he and Gibson made. He thinks her death may have been connected to that drug buy, or possibly in retaliation for Hart's well-known status as an informant.
Informant status known
"Almost everyone in my hometown (Alexander City) knew I was an informant because they all got arrested and I didn't," Hart said, referring to a sting operation less than a year before Dana died.
In another memo Valeska withheld, ABI's Capt. R.C. Taylor wrote that he received a call from a Montgomery County sheriff's deputy. The deputy reported that one of his informants, two weeks after the murder, overheard a white male named David and a white female named Jan discussing the victim's cooperation with authorities in making drug arrests. The informant heard one of them say, "The bitch won't make any more drug cases. We got her."
Hart said after the sting operation in Alexander City, he received death threats from a drug dealer who is now in prison. The dealer's brother is named David.
The theory that Dana Hart's death was related to her cooperation with police was repeated in another memo withheld from the defense. This memo reported that a reputed contract killer for Atlanta-based drug dealers "set up the Dana Hart murder."
"It's one of the worst travesties of justice you can imagine," Clark said. "Grady has been in prison now for 16 years, and he didn't do anything."
Clark said Valeska also hid the fact that a star witness for the prosecution testified only after Valeska made a deal with her to drop unrelated charges that she embezzled $160,000.
An ABI memo withheld by Valeska said the witness originally denied knowing anything about the murder of Dana Hart.
"Cpl. Johnson briefly talked to (the accused embezzler) and told her that if she had any information pertaining to the murder of Dana Hart and wished to provide said information that . . . ABI would attempt to help her with her present legal problems," the memo said.
Apparently her memory improved because she testified against Gibson and Hart at trial. After the trial, according to Baldwin County records, the state dropped the embezzlement charges.
"I asked her on the stand, 'Obviously you made some kind of deal with the state.' 'No, I didn't. No deal was made.' Valeska knew full well they'd made a deal, and he stood there and let that witness perjure herself," Clark said.
Testimony from another ABI agent was critical in the Gibson case. Fellow agent Richard Mobley testified at trial, under direct examination by Valeska, that Gibson had said something that, while ambiguous, was arguably a confession. Last year, 14 years after the trial, Mobley rescinded his testimony despite the threat of a perjury indictment.
In an affidavit, Mobley said, "I testified untruthfully. . . . Grady Gibson never confessed to me that he murdered Dana Hart.
. . . I manipulated Grady's actual statements into a confession because of the threats against me."
Valeska's response at the time: "(Gibson) just doesn't like being in jail. . . . We don't pressure anybody to testify."
Hart keeps a stack of documents in his prison cell, copies of memos withheld by the prosecution. On the top is a typed, yellowed letter explaining why he could not have killed his wife. He pulls it out whenever people come from the outside to ask him about the murder. At the bottom of the letter is the statement "This miscarriage of justice cost me 12 years of my life."
The "12 years" is crossed out, though, and scrawled below it is "14 years, 4 months." That too is crossed out, replaced with "15 years, 5 months." In preparation for his interview with THE DAILY he crossed it out one more time, replacing it with "16 years, 5 months and 15 days."
Hart is losing hope.
Lawyers on both sides of a case are required to follow rules that assure the jury hears all relevant evidence. Those rules are useless unless judges and defense attorneys know the evidence exists.
"I've never known Don to hide things," said Mobile attorney Dan Turberville, who has defended clients in Valeska prosecutions. "Of course if he hid it and I didn't know it, I guess he was successful."
In theory a wrongfully convicted defendant can petition a court to overturn the conviction based on newly discovered evidence. Courts rarely grant these petitions, though, and few inmates can afford to file them.
Attorney General Bill Pryor said complaints about Valeska are no surprise.
"If I was a defense attorney on the other side of a case involving Don Valeska as prosecutor, I probably wouldn't like him either. Don Valeska is a tough, aggressive prosecutor, as I expect him to be. He represents the interest of justice in criminal prosecutions zealously, and he gets results," Pryor said.
Lawyers for Daniel Wade Moore say it is not the cause of justice that motivates Valeska, but the desire to get a conviction.
Daniel Wade Moore
Karen Tipton, 39, died a gruesome death in Decatur in 1999. Police first learned of her death when her husband, Dr. David Tipton, placed a 911 call at 4:29 p.m. on the day of the murder.
In the Gibson and Hart cases, defense attorneys discovered Valeska's failure to provide documents because someone stole the ABI files. In Moore's case, defense attorneys discovered Valeska's omissions largely because of intense media scrutiny of the trial. Witnesses who thought their testimony was critical realized the prosecution never gave their names or statements to the defense attorneys.
Valeska took control of the murder case against Moore in early April 2002. He withheld numerous items of evidence until shortly before the Nov. 4, 2002, trial, according to court records. He never turned over some items.
Valeska's failure to produce evidence in the Moore case was particularly damaging because the grand jury did not indict Moore until 19 months after the murder. Moore's attorneys were therefore not involved in the case until much of the physical evidence had disappeared and many potential witnesses had forgotten information.
Partly because of this delay, Judge Thompson ordered "open file" discovery in December 2000. This meant that Valeska had to turn all evidence over to Moore's lawyers, not just evidence tending to favor Moore.
The state's theory was that Moore killed Tipton between 1 and 3:30 p.m. The timing was critical to the prosecution because telephone records demonstrated Tipton was on the phone with a friend until 1. The victim's husband testified he discovered her body when he arrived home at 4:15. If the murder took place after 4, or if Dr. Tipton arrived much before 4, Moore had no opportunity to commit the murder.
Pamela Brown Smith lived near the Tiptons. She told THE DAILY, and later filed an affidavit, that she saw Karen Tipton alive, at her mailbox, at 3:30. Smith said she gave a statement to police about this fact shortly after the murder. Valeska denied the existence of the statement and never turned it over to Moore's lawyers.
Moore's attorneys did not know of Smith's statement until after the trial ended.
Another witness, Diane Murphy, said she saw a white car speed away from the Tipton residence on the day of the murder. She said in an affidavit filed in court that she gave a statement to police shortly after the murder. Moore had a black pickup truck. Valeska produced no such statement, and Moore's attorneys did not hear of Murphy's claims until after the trial.
Valeska failed to produce a copy of the 911 call placed by Dr. Tipton until five days before trial. In addition to Dr. Tipton's call, the tape included a statement to the dispatcher, by a family friend, asking if Dr. Tipton committed the murder.
Valeska first turned over a number of witness statements about six weeks before trial. Among these statements was one in which a worker said he saw Dr. Tipton's vehicle in the Tipton driveway "at least 1 hour maybe longer before the police arrived." Another witness said he saw a worker at the Tipton house at 2:15, and Mike Ezell from Rogersville said he had proposed a liaison with Karen Tipton that would involve "swapping partners."
Also withheld from the defense until well after the trial was an investigator's report about Karen Tipton's funeral. The report said Ezell's behavior at the funeral was "unusual." The report also quoted Karen Tipton's sister as saying Ezell had a cut on his forehead that he concealed during the funeral with makeup. Another report Valeska withheld indicated Karen Tipton was having an affair with someone named "Mike" at the time of her death.
Police concluded that Ezell had an alibi for the day of the killing.
Two weeks before trial, Valeska first produced the lie detector results from a suspect in the killing. He never did produce one of the 11 questions on the polygraph test, and he omitted the response and analysis of the omitted question as well.
Valeska did not turn over the crime scene video until 11 days before trial.
Moore's attorneys did not discover police had lifted a bloody shoe print from the murder scene until the middle of the trial. The only reason they discovered it then is that Valeska used a different page of the same document — also withheld from the defense — during a cross-examination. One of Moore's attorneys, Catherine Halbrooks, asked for the other two pages. One referenced the shoe print. By then, it was too late to hire an expert to analyze the print, Halbrooks said.
A local developer told THE DAILY he gave a written statement to police regarding the murder. Valeska said no such statement existed. The developer also told THE DAILY that he had been the target of a bribery attempt in which an anonymous caller threatened to give information to police about the developer's involvement in the murder. The Decatur police investigated the bribery attempt, but Valeska never gave Moore's attorneys information from that investigation.
The last person Karen Tipton talked to before the murder, Sarah Holden, testified police took written notes of her statement. Valeska said no such notes existed. Another statement, written by Holden, did not surface until after trial. Valeska also withheld a 245-page FBI report on Tipton's murder, according to court records. The defense lawyers said they did not know there was an FBI investigation until after the trial, when Valeska filed a three-page FBI memo. Valeska turned over the rest of the FBI file eight months after trial. He also withheld portions of several Decatur Police Department reports that referenced the FBI investigation.
Included in the FBI documents was a statement that Karen Tipton engaged in "a number of extramarital affairs" and that she "was downloading homosexual pornography a few hours before her death." The report, recommending more investigation, also said Karen Tipton had told friends she was scared of one of her neighbors.
The undisclosed FBI records also said a medical examiner thought he detected semen in Karen Tipton.
In a court document, Judge Thompson said Valeska, on Oct. 30, 2002, "represented to the Court that the FBI had done no investigation — he'd never heard of the FBI in this case." Thompson then described an FBI report produced by Valeska after trial. According to a fax cover sheet, Valeska received the report 20 days before he denied FBI involvement. Thompson's statement matches a pretrial transcript in which Valeska said of the FBI, "They've done no investigation, Judge."
According to FBI documents, the agency began its investigation March 29, 1999, at the request of the Decatur Police Department. It ended its investigation June 20, 2000.
Halbrooks said she has no confidence she will ever know all of the evidence Valeska withheld.
"I am extremely disappointed in his willingness to misrepresent the truth in order to obtain a conviction," Halbrooks said.
Pryor said Valeska has to be aggressive because his cases are usually tough to prove.
"The cases that he handles are not the easy ones. Very often when a district attorney bows out of a case that ends up in Valeska's lap, it's a tough case. It's a case where very often circumstantial evidence is most of what we have," Pryor said.
Defense attorney Al Pennington said if a prosecutor's only job were to get a conviction, then Valeska should be lauded for squeezing convictions out of questionable prosecutions. But a prosecutor's role is not to convict just anyone, Pennington said. His role is to convict the guilty.
'Not the first time'
Pennington said he was not surprised to hear that the Moore conviction was thrown out because of Valeska's actions.
"It's not the first time," Pennington said. He represents convicted killer George Martin, a former state trooper, in an appeal to the state Supreme Court.
According to state investigators, Martin killed his wife in Theodore in October 1995 to collect insurance proceeds. The state indicted Martin five years later when investigators discovered he had a life insurance policy on his wife.
Pennington says Valeska hid critical forensic documents from the defense.
"There was evidence that the state lab said might have been cross-contaminated. It was key to the case. Valeska . . . said he didn't know anything about it the day of trial. Then they later admitted, 'Oh, here it is.' They definitely withheld evidence. There is no doubt they hid the ball," Pennington said.
Evidence was sparse enough in the prosecution's case that the hidden information might well have changed the verdict, Pennington said.
Martin is on death row.
On Feb. 19, 1992, Robert Landers Sr. died when a bulldozer rolled over him. Landers had been working with his son, Mark Landers, to clear land. Initially investigators thought the death was accidental, but when they discovered Mark Landers was a beneficiary of his father's life insurance policy they began investigating the death as a homicide.
Mark Landers told investigators he left the Montgomery County site while his father was operating the bulldozer. There were no witnesses to the death.
After three different grand juries failed to issue an indictment against Mark Landers, Valeska took over the case. He obtained an indictment and, more than four years after the death, a conviction.
Lanita Landers, widow of Robert and mother of Mark, said Valeska obtained a conviction by withholding critical evidence from the defense. Most remarkable was a report provided to the prosecution but never shared with the defense. The report, prepared by a company that examined the bulldozer at the prosecution's request, noted that while they were examining the machine it jumped into gear.
This defect, said Lanita Landers, is an obvious explanation for her husband's death. If her husband, clearing the land by himself, had gotten off the bulldozer while it was running, the defect described in the report could have caused the machine to lurch forward.
The jury never heard of the report. Lanita Landers first discovered the report existed a month after the trial.
"I am innocent," Mark Landers told THE DAILY. "I know that a lot of people in prison say this, but in my case it is true. As a citizen, you would never have been able to convince me how screwed up our criminal justice system is. Only firsthand experience has shown me."
Mark Landers' attorney also had to do without important forensic evidence. State-hired experts pieced the victim's skull together and used the results to argue Mark Landers had struck his father on the head before the bulldozer ran over him. When Mark Landers' attorney requested the skull so a defense expert could study it, Valeska advised him the skull had already been cremated.
"People like Mr. Valeska should not be allowed to practice law," Mark Landers said.
Additionally, the prosecution advised Mark Landers' lawyer that both the hard copy and computerized version of the initial autopsy report — which concluded Robert Landers' death was an accident — had been lost, according to Mark Landers.
"I lost my husband to an accident. What happened to my son, though, was no accident," Lanita Landers said.
Mark Landers is serving a life sentence without parole at St. Clair Correctional Facility.
When the man who killed Phillip Tomlin's brother was himself killed in Mobile, police suspected Tomlin committed the crime out of revenge.
Tomlin is serving a life sentence without parole, but it took him four jury trials to get there. Appellate courts reversed two of those convictions because of Valeska's conduct and reversed the third conviction on other grounds without addressing assertions that Valeska had again been guilty of misconduct.
Tomlin was on death row until last month, when the state Supreme Court reduced his sentence.
After 27 years on death row, 49-year-old Tomlin sounds more sad than angry. He continues to deny committing the homicide.
Despite a court order requiring Valeska to reveal all witnesses before trial, Valeska called a surprise witness who testified Tomlin had told him of a planned murder. Valeska also told the jury, despite a court order prohibiting it, that another jury had already convicted Tomlin's alleged accomplice.
Valeska also asked a series of questions intended to suggest to the jury that a gun Tomlin owned years before the murder was the same weapon used in the murder. He made these suggestions, according to a judge, despite knowing they were untrue.
"I can't understand why Mr. Valeska has gotten away with this. It's just hard for me to understand how a man of his stature and supposed integrity can keep getting away with this in my case and in lots of other cases throughout the state," Tomlin said.
Even the last conviction raised questions. As an appellate court said, "Tomlin contends only that the prosecutor's habitual misconduct was reckless. . . . On this point we agree; however, we know of no double jeopardy principle that forbids successive trials resulting from clumsy prosecutions."
Tomlin's sister and daughter filed affidavits saying they saw Valeska, during deliberations in the fourth trial, with his ear to a wall adjoining the jury room, after which they swore he opened the door to the jury room and spoke to the jurors. They said they could not hear what he said.
In response to an ethics charge, Valeska called the jury accusations "an absurdity."
Dan Totten, the defense attorney for a game warden convicted of manslaughter by a Limestone County court in 2002, also expressed frustration about documents that failed to turn up in the Valeska-prosecuted case. His problems surrounded a statement made by a passenger in a vehicle operated by James Sharpley. Totten's client, John Raley, shot Sharpley from behind, killing him, in a traffic stop.
"They wouldn't give me (the witness) statement. The boy wouldn't talk to me. We argued back and forth about whether (Valeska) had to give me the statement, only for Mr. Valeska to call me back later and tell me there was no statement. . . . Nevertheless, when the boy testified at trial, he claimed he made a statement. Which I never got. You get the message?" Totten said.
"If I didn't cuss (Valeska) out," Totten said, "I damn sure intended to."
'Worst misconduct ever'
In 1997, Valeska assisted in the unsuccessful prosecution of Tieco Inc. for fraud and racketeering. The alleged victim of the fraud was USX Corp.
The case gave Birmingham defense attorney Mark White near-hero status among the state's defense attorneys because of an order he obtained against Valeska and other prosecutors in the attorney general's office. The order, penned by former Jefferson County Circuit Judge James Garrett, slammed the conduct of the prosecutors.
"The defendants have presented extensive evidence of serious and wholesale prosecutorial misconduct by the office of the attorney general, its attorneys, investigators, and agents, throughout the initiation, investigation, and prosecution of this case. The attorney general has failed to rebut this evidence," the order states.
"The misconduct of the (prosecutors) in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by this court," wrote Garrett, although he noted he did not know to what extent Valeska contaminated the proceedings.
One of the triggers for Garrett's wrath was the prosecution's refusal to provide the defense with a copy of an affidavit used to secure a search warrant for Tieco Inc. Garrett also criticized the attorney general's office for providing many of the hundreds of boxes of documents seized through the search warrant to Tieco's competitor, USX.
Garrett said in an order that the prosecution "exhibited and continues to exhibit a complete disregard for its responsibilities under the laws of the state of Alabama (and has) ignored suggestions and prior orders of this court regarding . . . these materials."
Valeska's response at the time: "We feel like we have been more than forthcoming in this case in providing materials that are required to be disclosed under the rules."
In 1999, a federal jury concluded that USX "engaged in a civil conspiracy with the office of the attorney general of the state of Alabama to unlawfully use the criminal process against defendant Tieco."
Tieco's attorney said he now knows what to expect from Valeska.
"There's that great line from 'Salvation on Sand Mountain' " — a book about snake handling in the Appalachians — " 'Never take a snake from somebody you don't trust.' I wouldn't ever let Valeska hand me a snake," White said.
Valeska's use of cross-examination to plant false information in jurors' heads in Tomlin's murder case was not the only time he used the tactic, according to court rulings.
As early as 1978, a court threw out a Valeska conviction because he used his cross-examination to suggest to jurors that the defendant had a history of criminal convictions — a history that did not exist.
In another case, the trial court ruled the prosecution could not introduce evidence of a defendant's criminal record. Valeska ignored the order, asking the defendant, "As a matter of fact, you all have gotten into trouble before, haven't you?"
The Court of Criminal Appeals determined Valeska's use of cross-examination "to imply the existence of a factual predicate which the examiner knows he cannot support by evidence" was "unprofessional conduct."
Valeska employed a similar tactic in the 1990 conviction of Jerre Chatom for a Mobile County double homicide. Despite having no evidence to support the contention, according to the court, Valeska told the jury in the opening statement that "the evidence will show to you that (Chatom and another defendant) were shooting up opium and smoking marijuana and taking other dope."
Chatom is now serving a life sentence without parole in Fountain Correctional Facility.
'Lives in gray area'
Joel Sogol, a defense attorney who said he had difficulty forcing Valeska to turn over documents in a Clarke County trial, said Valeska constantly pushes the limits of rules requiring that he share information with defense attorneys.
"He likes to walk close to the edge as to what's reversible and what's not. In a lot of cases there is no hard line as to what's proper and what's not. Then there's this gray area. Many prosecutors take the position they never want to get in the gray area. Valeska lives in the gray area," Sogol said.
Part of the problem stems from the fact that, unless a judge rules otherwise, prosecutors in Alabama usually only need to turn over "exculpatory evidence," that is, evidence tending to help the defense. If the defense does not know evidence exists, however, it cannot bring to the court's attention that it is exculpatory, Sogol said. The rule limiting discovery to exculpatory evidence works only if prosecutors evaluate and share evidence in good faith.
Sogol's description of Valeska's conduct fits the pattern presented by many defense attorneys.
"We would get these dribbly little tidbits of information (from Valeska). Periodically we'd get these letters saying, 'Gee, look what we found.' A month would go by and we'd get something else."
The judge in Sogol's case ultimately required Valeska to turn his entire file over to the court so the court could decide which information the defense was entitled to receive, Sogol said.
In 2001, Valeska successfully prosecuted Department of Transportation employee Marvin Roland Graves in the death of another transportation employee in Grove Hill. Graves did not dispute killing the co-employee, but said he did it in self defense.
His daughter, Sheryl Graves Turner, said she is positive Valeska withheld documents to obtain the conviction. She bases the conclusion on information she and a relative — who works at the DOT — discovered after trial.
"We know that most people at the DOT office were interviewed by the ABI. None of the ABI interviews were turned over to us," Turner said.
"Valeska gave us three (statements), and we know they interviewed at least six other people. The people worked in the Department of Transportation and they all said they were interviewed. Two of the people said they were prepared to testify for my father," Turner said.
Graves' sentence at Easterling Correctional Facility will end in 2027, at which time he will be 86 years old.
Former Attorney General Graddick is typical of Valeska's employers in saying defense attorneys lambaste Valeska not out of a desire for justice, but because they are angry he beat them in court.
"They're blaming the right guy because he was beating their pants off. Many defense attorneys don't particularly care for the way Don goes about prosecuting a case, but people don't like getting whipped all the time. . . . I believe Don Valeska is one of the finest prosecutors in this country. I believe he is one of the hardest-working guys I know," Graddick said.
"I've never known Don Valeska not to play exactly by the rules," Graddick continued. "Don never did anything intentional in a courtroom that he or anybody else would consider improper. He is an experienced prosecutor and has tremendous integrity."
Role of prosecutor
Clark, Gibson's attorney, questions Valeska's ethics, not his talent.
"The real problem is that Valeska's a very bright boy," Clark said. "He could probably win his cases straight up, but it ain't in him. He can't play by the rules."
Defense attorney White said Valeska's gamesmanship has no place in criminal trials.
"The attitude is, 'If you can tell us what we have that shows your client's innocence, we will go look for it.' That attitude is not what the law is. If they have exculpatory information, they are obligated to turn it over," White said.
"The role of a prosecutor is not just to get a conviction," White said. "(Valeska) doesn't even want to recognize an ethical test. You see this mentality that, 'If we find something that helps the defendant, we either conceal it or don't give it.' "
One of Moore's attorneys, Sherman Powell Jr., sounded the same tune.
"The sworn duty of a prosecutor is to seek the truth. Looking at the evidence they willfully suppressed, it appears they did not comply with that oath," Powell said.
White said Valeska's methods have to change.
"We have a level of mutual respect," White said. "They know that I'm going to be suspicious of everything they do, and I know I am usually right. . . . Notwithstanding what they think, I'm not going to get used to it. I'm not going to accept it. And I'm sure not going to countenance it."
Totten said complaints about Valeska result in part from a difficult balance the state's criminal justice system tries to maintain.
"The prosecutor represents the people of Alabama. He or she, in an ideal situation, is searching for the truth. However, our system of criminal justice is an adversarial system. It only works because it is an adversarial system. One advocate on each side puts his best foot forward in order for the jury to come up with the truth," Totten said.
"It just so happens," Totten said, "that Mr. Valeska is very fervent in putting his foot forward, to the point where his foot sometimes ends up in the rear end of the other side."
The Alabama State Bar's Rules of Professional Conduct state that a prosecutor shall "not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."
In a comment to the guidelines governing prosecutorial conduct, the rules state that "a prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."
The comment continues that "knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation."
Many courts have questioned Valeska's conduct, but in most cases the courts determined that the conduct is "harmless error," that is, that the misconduct probably did not affect the jury's verdict.
According to the Alabama State Bar, Valeska has never been disciplined. A spokesman for the bar association said complaints alleging misconduct are "strictly confidential unless the complaint results in a disciplinary action."
Valeska blocked an investigation into his conduct in 1990 by filing a lawsuit against the state bar association, according to court records.
Tomlin filed an ethics complaint against him that the bar association dismissed.
Halbrooks, Daniel Wade Moore's attorney, said she intends to file an ethics complaint against Valeska.
"I think I have no choice. I'm duty-bound to file one," Halbrooks said shortly after the Moore trial.
Reflecting on his defense of Eddie Hart, Williamson said of Valeska, "I didn't know who I was dealing with then. I do now."
Hart, sitting in Elmore Correctional Facility, said he wants to see Valeska fired and prosecuted.
He also said he wishes he could speak to Valeska face-to-face.
"I would say, 'Why did you do this to me? Why did you do it to Grady? Mr. Valeska, you'd better be making things right with God. One day you are going to face your maker. What are you going to say to him?' "The conviction of Grady Gibson