CORPUS CHRISTI, Texas — A prosecutor assigned to a high-profile sexual assault case with 14 alleged victims became aware evidence was missing in late June, and never notified the judge — nor the defense attorneys assigned to the case, according to testimony during a hearing Wednesday.
Defense attorneys for former local OB-GYN Dr. Juan Villarreal filed a motion to designate and disclose lost evidence earlier this month.
That hearing began Wednesday and will resume Friday in the 148th District Court.
Nueces County District Attorney Felony Chief Prosecutor Will Greenlee testified he first learned evidence was missing on June 30, the date he was assigned the case.
An evidentiary hearing was held on July 11 and Greenlee stated on the stand he did not disclose the missing evidence during that hearing.
"I was very optimistic that we were going to find it. I have text messages showing we were very optimistic," Greenlee testified. "We were up here on Saturdays, we were here on Sundays searching for it so, at that time, I was optimistic. It was after we conducted that exhaustive search — I mean every office, multiple times — every box was opened. It was after that I started to realize we were not going to be able to find it."
In early August, Greenlee said he asked the Corpus Christi Police Department to recreate the file, believing one to two boxes of evidence was missing.
He said he learned files were missing by speaking with former prosecutors assigned to the case.
And while CCPD was able to provide several files, they informed Greenlee that the document retention date had expired on two witness statements and could not be provided.
That's a problem, Ron Barroso said, one of two defense attorneys representing Villarreal.
He said that it means the DA's office cannot comply with its obligation to turn over all evidence, which is established under the Michael Morton Act.
Barroso said that the failure by Greenlee to inform the court, or the defense of the missing evidence during the evidentiary hearing on July 11 was also a violation of the Michael Morton Act.
He added while the DA's office may not have acted in bad faith in losing the files, it did so in not informing the defense that they had been lost.
"I think it’s a serious violation of the Michael Morton act," he said. "The Michael Morton was passed specifically for this purpose. You want to turn over to the defense all evidence that you have, any evidence that may be material, any evidence that may be exculpatory. And this certainly, in our opinion, violates this act."
Barroso also said it is impossible for the DA's office to recreate a file it doesn't have.
A fact Greenlee stipulated to on the stand.
"They still don't know what is missing, but more than that they know there's at least a box full of evidence that is missing, not knowing exactly what it is really hampers our ability to prepare a defense and also infringes on Dr. Villarreal's right to a fair trial," he said.
Barroso and defense attorney Lisa Greenberg are asking that the indictment against Villarreal be dismissed.
They also ask the DA's office establish a procedure for the handling of evidence, citing the ruling by Visting Judge Manuel J. Banales that the DA's office acted with gross incompetence and negligence in maintaining evidence in the cases related to Breanna Wood.
