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The Dallas Morning News

Judge calls for retrial in 1986 slaying: He finds misconduct by ex-prosecutor now in DA campaign

March 13, 2008

A Dallas County judge found Wednesday that a former prosecutor and judge now running for Cooke County district attorney committed prosecutorial misconduct during the murder trial of a man accused of shooting and raping a Garland woman two decades ago. Judge Mike Snipes concluded that the Court of Criminal Appeals should grant Clay Chabot a new trial because Janice Warder, the lead prosecutor in the case, failed to disclose information favorable to the defense that could have changed the jury's verdict.

The 10-page finding said that Ms. Warder did not tell Mr. Chabot's defense attorneys about inconsistent statements by his brother-in-law Gerald Pabst, whom DNA tests now show to be the rapist. The judge also said that Ms. Warder did not disclose discussions with another witness about her not being interested in prosecuting him for drug dealing. "The Court finds and concludes that Chabot has proved the facts he alleges that the State failed to disclose Pabst's inconsistent polygraph statements and [witness Jay] Fair's discussions with the state regarding his illegal drug activity are true," Judge Snipes wrote. Judge Snipes' findings come after three days of testimony last month about whether he should recommend the new trial. The Dallas County district attorney's office and another judge already agreed that Mr. Chabot should be granted a new trial because of Mr. Pabst's perjured testimony that Mr. Chabot raped the woman. But the higher court asked for hearings about possible misconduct before reaching a decision.

Ms. Warder, who spent 14 years on the bench before losing her seat in the 2006 Democratic sweep of Dallas County judicial elections, could not be reached for comment. In an interview last year, she denied any wrongdoing. Ms. Warder, a Republican, will face Cooke County District Attorney Cindy Stormer in a runoff election April 8. There is no Democrat running for the office, so the winner will run unchallenged in November. There is no criminal charge for a prosecutor who violates the law by not turning over evidence that could be favorable to a defendant. That law, referred to as a Brady violation, comes from the U.S. Supreme Court case Brady v. Maryland. In that 1963 case, the Supreme Court found that withholding evidence that could help a defendant's case violates due process. Ms. Stormer, Ms. Warder's opponent, released a statement Wednesday. "If the court determined that Janice Warder violated Brady v. Maryland and deprived Mr. Chabot of due process, then that indicates something important about her qualifications as a prosecutor," Ms. Stormer said in a written statement. "While a prosecutor may strike hard blows, they should not strike foul ones. It is not the prosecutor's job to convict, but to see that justice is done. It seems she owes an explanation to those from whom she seeks support to again serve as a prosecutor in Cooke County."

Judge Snipes wrote "very strong findings that Mr. Chabot didn't get a fair trial the first time and a very strong finding that he deserved to have his conviction overturned," said Jason Kreag, one of Mr. Chabot's attorneys. Mike Ware, who oversees the conviction integrity unit of the Dallas County DA's office, said he agrees that Mr. Chabot should get a new trial but may file objections to some of the reasons Judge Snipes found for granting it. Mr. Chabot and Mr. Pabst are accused in the 1986 slaying of Galua Crosby, who was tied up, raped and shot in her Garland home. At trial, Ms. Warder said the men went to the home to settle a dispute over bad drugs sold to Mr. Chabot by Ms. Crosby's boyfriend. Mr. Pabst said at the trial that Mr. Chabot ordered him at gunpoint to tie up Ms. Crosby. His testimony was critical in convicting Mr. Chabot.

This was not the first hearing into allegations of prosecutorial misconduct in the Chabot case. Both state and federal courts have had hearings on similar issues but found no grounds for a new trial when looking into the timing of a plea bargain with Mr. Pabst. Ms. Warder has offered different accounts about the time at which a deal was made with Mr. Pabst for his testimony, according to court records. In a December 1991 affidavit in state court, Ms. Warder said that dismissing the case was discussed with her supervisor after Mr. Pabst testified but before the trial ended. The court found that while the state violated Brady, this was not substantial enough to change the trial verdict.

Then, at a federal hearing in 1994, Ms. Warder testified that her previous affidavit was false. She said that dismissing the case against Mr. Pabst was not discussed until after the trial ended. She said she was confused when she made her sworn affidavit statements because she misinterpreted the date on a memo she was using to prompt her recollection of events. Mr. Pabst was arrested last fall in Ohio and now faces a capital murder charge. He was previously charged with misdemeanor theft by Ms. Warder for stealing and pawning Ms. Crosby's radio. Prosecutors say they believe Mr. Chabot and Mr. Pabst committed the crime together. They will retry Mr. Chabot in Ms. Crosby's murder if the higher court grants a new trial.