Sprguse Shrader Smith p.c.

ATTORNEYS

AT LAW

JOHNNY K. MERRITT
(806) 349-4713

December 1, 2014

Danny Buck Davidson, Esq.

FedEx # 7720 413] 4390

Panoia County Criminal District Attorney

Panola County Judicial Center
108 S. Sycamore, Room 301
Cai'thage, Texas 75633

Re:

Texas v. Bernhardi Tiede, //, Cause Nos. 1997-C-103, 1997-C-103A and 1997-C-

104in the 123^'* District Court in Panola County, Texas ("Trial Court Case"); and

Ex porfe BernhanU Tiede, II. Cause No. 1997-C-103-A in the Court of Criminal
Appeals of Texas ("Appeals Court Case").
Dear Mr. Davidson:

As you know, I represent Rod Nugent, the only child ofMaijorie M. Nugent, and his four
children. You will recall my June 17, 2014 letter through which Ms. Nugcnt's family sought to

obtain information from you relating to the habeas corpus proceeding. We were disappointed
you did not respond to that letter.

The family of Ms. Nugent asked me to send this letter to request that you recuse yourself
and your office from representing the State ofTexas in Mr. Tiede's new sentencing trial for his
murder conviction. The family further requests that you ask the trial court to appoint an assistant

attorney general to represent the State in that matter. Article 2.07(b) of the Texas Code of
Criminal Procedure permits you to recuse yourself and your office even if you are not otherwise
disqualified. Article 2.07(f) of the Code authorizes an assistant attorney general to serve as the
prosecuting attorney.

Texas law imposes upon prosecuting attorneys the duty to "avoid conflicts of interest and
even the appearance of impropriety by deciding not to participate in certain cases." Coleman v.
State, 246 S.W.3'^ 76, 81 (Tex. Crim. App. 2008) (emphasis added). We are concerned about
your objectivity and the possibility that you may have violated ethical i-ules governing
prosecuting attorneys in your zeal to see Mr, Tiede released from prison. Our concerns about
your objectivity are based on your well-known interactions with Richard Linklater and others
associated with the movie "Beniieyour recent published statements and activities, and

evidence in the possession of the Panola County Sheriffs Officeevidence you failed to
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Danny Buck Davidson, Esq.

December 1,2014

Page 2

disclose to the tribunal considering Mr. Tiede*s habeas corpus application and endeavor to hide

from the public. Simply put, we believe your recusal is absolutely essential and required by
applicableethical rules.

Here arejust a few examples of facts leadmg us to these conclusions:

1.

You made the following statement to the Palestine Rotary Club in August 2013:

"She [Ms. Nugent] was killed in November and discovered the next August - now, what do we
have during that time period? We got Thanksgiving, Christmas, Mother*s Day, her birthday...
Her family was not looking for her, but they got real mad when they found out he'd spent a
bunchof her moneyafter her death*bout $6 million worth."

These statements show yoiu* inappropriate and disrespectful attitude toward my clients,
your lack of concern for thevictims ofTiede's crime, and your current bias in favor ofTiede. In
fact, these statements likely constitute legal slander against the victims in this case. Likewise,
although you are not hesitant to disclose in a public forum you have evidence showing Tiede
stole "bout $6 million [from Ms, Nugent] after her death", you go to great lengths to avoid
allowing thatevidence to be released to theNugent family or to the public.

2.

Variety Newspaper stated the following in an article published on June 25,2014:'

"Whatdidn't get reported immediately was the factthat Tiede'srelease marked the culmination
of a roughly two-year concerted effort by Linklater and others chiefly Danny Buck
Davidson, the district attorney whoprosecuted Tiedefor the 1996 murder ofhis Sl-year older

companion, Marjorie Nugent. . . Their goal: to reduce Tiede's sentence to time served (17
years) in light of new facts dug up by Jodi Cole, a local attorney who became intrigued by the
case after seemg 'Bemie' and discussmg it with Lmklater at the film's Austin premiere."
(Emphasis added).

We were shocked to learn that you have been working in tandem with Tiede's defense
team for over two years to obtain his release. This certainly shows a conflict of interest in your
continuing to serve as the prosecutor. Moreover, youtook these actions without any notice to my
clients.

3.

Hearing on Writ of Habeas Corpus, Page 32, Lmes 12 -13; and Page 33, Line 10

through Page 34, Lme 2:

MR. DAVIDSON:

Your Honor, at this time, I would like to read into the

record my affidavit thathas beenfiled.

'

Althou^ we would have preferred toobtain information directly from you oryour office, your refiisal to

engage in any communications with the Nugent femily has resulted in our having to rely on third-party sources for a
portion of our information.

Danny Buck Davidson, Esq.

December 1,2014
Page 3

I did not know that Mr. Tiede had been sexually abused as a child, and I did not
know the extent of the decedent's encroachments on his reasonable boundaries.

These issues are thorou^y explained in Mr. Tiede's latest psychiatric

evaluations. In consideration of the opinion and affidavit of my punishment

expert Dr. Edward Brown Gripon, M.D., thepsychiatric evaluation ofDr. Richard
Pesikoff, the new mitigating evidence presented by the defense, and my own
independent investigation, I have made new, fully informed assessments of the
circumstances surrounding the shooting event and Mr, Tiede's lack of future
dangerousness. I nowfeel thata life sentence is an inappropriate sentence for Mr.
Tiede."

Because Dr. Gripon did not evaluate Tiede for you a second time until January 24, 2014,
and did not provide you his report until after that, based on thisaffidavit testimony, you did not
make your new **fully informed assessment of the circumstances" until at least January 2014.
And yet, asdiscussed above, you allegedly were engaged in a "concerted effort'* with the defense
team to obtain the release for Tiede **for over two years." Accordingly,

workedfor Tiede's

release long before you had any "evidence" to support that effort This establishes both a
conflict ofinterest and a lack of candor toward the tribunal.

4.

Hearing on WritofHabeas Corpus, Page 8, Lines 12-18:

THE COURT: Mr. Davidson, the Findings of Fact and Conclusions of Law bear
your signature.
MR. DAVIDSON:

Yes, it does.

THE COURT: So, you are not opposing those Findings of Fact and Conclusions
of Law?

MR. DAVIDSON:

No, Your Honor.

The fact that you represented to the trial court that the Findings of Factand Conclusions
of Law proposed by Tiede's defense team are wholly accurate demonstrates your lack of desire
andinability to properly serve as the prosecutor in thismatter. As shown below, an independent
attorney retained by Panola Sheriff Kevin Lake acknowledges you have evidence which should
be used to question Tiede's new and unchallenged allegations of child abuse and &e untested
opinions of the experts who rely entirely on Tiede's unchallenged allegations and self-serving
statements. Instead of using that evidence, you simply stipulated to the trial court that every
finding of fact andconclusion of lawespoused by Tiede and hisdefense team areestablished and
true.

5.

Hearing on Writ of Habeas Corpus, Page 10, Lmes 6-13:

Danny Buck Davidson, Esq.

December 1,2014

Page 4

THE COURT:Okay, as far as victim notification of these proceedings, I didn't go

over that earlier and I should have. Mr. Davidson?

MR. DAVIDSON:

Your Honor, I do not see any of the victuns here, but they

have been notified.

THE COURT: They have been notified and know aboutthese proceedings?
MR. DAVIDSON:

Yes, ma'am.

This was an outright falsehood, and violated your ethical requirement of candor toward

the tribunal. As you fully know, nei^er you nor your office made any effort to contact Ms.
Nugent*s family about these new proceedings either before they began, or afterward
6.

Hearing on WritofHabeas Corpus, Page34, Lines 1-7:

"Therefore I am agreeable to considering his sentence to be time served. If the

Appellate Court grants hisMotion for Habeas Corpus Relief and heis resentenced
and released from prison he will be a convicted felon who has served almost 17
years behind bars for murder."

This statement demonstrates your lack of objectivity. Tiede*s sentence should bedecided

by ajury ofhis peers^not your unilateral decision as to what is"enough" time. Having already
undermined the first jury's decision, you now are attempting to usurp the role of a second jury.
7.

Statements in October 10,2004 letter to The Honorable Greg Abbottfrom Robert

Underwood, Esq. as attorney for Panola County SheriffKevin Lake:

"This information is also relevant to the specific investigation and

prosecution inthe possible new punishment trid in the murder case since
Tiede acted in a knowing deceptive course of conduct over several

months by withdrawing large sums of money and spending or giving it

away.fl This conduct may be relevant to explain why Tiede murdered

her and hid her body in a freezer. The concealment of the body and
deception in the withdrawals appears contradictoty to the 'sudden
passion/emotion* as stated onpage11paragraph 64 of theFindings of
Fact ofthe Trial Court The deceptive conduct and deliberate acts of
Tiede for a period of nine (9) months after the murder is relevant to
prove theintentional murder and to rebut or counter the 'new evidence*
which arose in the Writ Hearing. The information withheld contains

dear evidence ofthisconduct after the murder* *' (Emphasis added).

^

Based on your published statements to the Palestine Rotary Club, apparently the evidence shows withdraws

of money of approximately $6 million.

Danny Buck Davidson, Esq.

December 1,2014
Pages

As stated before, this shows that youhave access to evidence that is "contradictory to the

*sudden passion/emotion'" argument, and additional evidence that "rebut[s] or counter[s] the
*new evidence* which you represented to the trial court at the habeas hearing as being
established feet. This further demonstrates yourbias, conflict of interest, lackof candor with the
trial court, andinability to continue to serve as theprosecuting attorney in thismatter.

"Additionally the information withheld contains evidence of the expenses

andexpenditures spent by Tiede and Maijorie Nugent prior to the murder.
This evidence is relevant to rebut the alleged 'verbal abuse* Tiede was

subject to by Marjorie Nugent which is cited in the Findings of Fact,

ConclusionsofLaw,Recommendations and Order on Page Sparagraph
#26, and the 'deteriorated* relationship cited on page 8, paragraph U44.
Evidence of the amoimt of money being spent can explain some of the
newevidence' arising fromthe writ." (Emphasis added).

*'The collection ofseventy-six (76) tapes taken as a whole are relevant

information to a cross examination cf Tiede or the reputation witnesses

or direct or cross or expert opinion testimonyfrom behavioral or mental

experts in the punishment or sentencing phase ofa criminal trialfor a

brutal murder ofan elderly woman orfor theft ofa large sum ofmoney
from an elderly woman with deception over a long period of time* It is
ihe overall nature or theme of the tapes which is relevant. The past
behavioral and mental issues are extremely relevant evidence in a new
punishment trial "(Emphasis added).

Neither the testimony nor the affidavits orreports ofthe mental health experts relied upon
for the Tiede*s habeas application include any mention of these tapes. Because of your
concerted effort to help the defense team obtain the release of Tiede, you wholly failai to
provide this evidence to the experts upon whom Tiede relied for his writ to consider when
evaluating him, and failed to use them incross-examining those experts totest their conclusions.

Amazingly, the credibility of Tiede and his newly asserted facts have also not been tested by
cross-examination with the use of these tapes.

The fact is that it is unlikely that anyone outside of your office or the Panola County
Sheriffs office would have even known of the existence of the evidence Mr. Underwood
identifies unless Ms.Nugent'sfamily hadtendered an openrecords request.

8.

There are published reports of your attendance at the premier of the movie

"Bemie" and multiple photos ofyou and Mr. Liiilater. Your relationship with people associated

with the movie calls into question your objectivity and creates, at a minimum, an appearance of
impropriety.

Danny Buck Davidson, Esq.

December 1,2014
Page 6

9.

Jury members who convicted and sentenced Tiede have made clear that, contrary

toyour claims, the purported new information would not have affected the sentence:
o

"He confessed that he did it. We found him guilty. In the punishment

phase we gave him a life sentence - that's the max you can give him. It
was pretty much ofa cut-and-dry case. He killed a lady and put her in a
fieezer. Him getting out under these circumstances, I don'tthink isright"
o

"Ijustfound it to be unjust because I was one ofthe jurors, and it was hard
for me to try that case. I was looking at the evidence I had seen, and for it
to be turned around like it did just doesn't seem fair."

o
o

"It would bother me no matter who he is living with. But probably if this
movie hadn't come about, would he be going through this? I doubt it."
"Thatconcerns me, because ifhe did it once, there is a chance he cando it

again. If anyone snapped to the point that he could take an innocent

bystanders life ... they cando it again."
o

"I thinlf he should have had the death penalty, but that was not an option

forthejury. He should serve the remainder of histerm."

o

"It wouldn't have changed my mind. That lady was 40 years older than
he was. I don't think thathadanything to do withhis childhood."

"To me, he can say it was because he was abused as a child, but I truly
feel it was because of much more than that. I truly think it was her
money,"

Every juror who was willing to be interviewed strongly opposes your switching sides.
Finally, your role during the habeas hearing demonstrates the need for your recusal. In
the hearing, your role as an advocate for Tiede's release is clearly demonstrated. Your affidavit
testimony shows that you have no intention ofchallenging the testimony ofTiede's newly found
expCTts or even Tiede's own self-serving statements upon which his new experts rely. In fact,
you tendered the testimony ofyour own expert to support Tiede's motion.

As stated before, in direct conflict to your position during thehabeas hearing, the attorney

retained to represent Panola County Sheriff Kevin Lake argued against releasing certain items to
the Nugent family because those items constitute evidence which is contrary to Tiede's
"evidence" supporting his motion. You had this evidence at the time ofthe habeas hearing, but
for some reason decided notto use it to challenge that motion. This leads us to believe that you

will use the same tactic during the new trial on sentencing. In fact, your express statements and
actions demonstrate that is precisely what you intend.

Danny Buck Davidson, Esq.

December 1, 2014
Page 7

In spite of your personal beliefs relating to whether Tiede has been punished enough for
his murder of and theft from Ms. Nugent, and regardless of your personal views and

inappropriate judgments relating to my clients familial relationship with Ms. Nugent, don't you
believe that the most appropriate step here would be to honor your previous jury'ssentence, and
Ms. Nugent's life with a recusal so that an independent prosecuting attorney can decide for him
or herself how to objectively pursue the new trial and to challenge the testimony of the newly
presented witnesses? We certainly hope so.

Would you provide me the privilege of a response this time? I would certainly appreciate
ifyou would do so.

espectivel

yK. Me