Houston Lawyer: Prosecutorial Vindictiveness

Prosecutorial vindictiveness refers to filing a lawsuit for purposes of harassing the defendant when there is no genuine basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of harassing or vengeful motives and without any legal or factual foundation, it may be the basis of a claim for damages against the person who filed the original action. If vindictive prosecution is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages.

A prosecutor may violate a defendant’s due process rights if they are using their decision to prosecute for purposes of retaliation; for example, charging the defendant with a more serious offense after the defendant appeals the conviction of a lesser offense,  or charging the defendant with an offense although the defendant has not violated the law.

North Carolina v. Pearce, 395 U.S. 711 (1969), is a United States Supreme Court case that forbids judicial “vindictiveness” from playing a role in the increased sentence a defendant receives after a new trial. In sum, due process requires that a defendant be “free of apprehension” of judicial vindictiveness. Time served for a new conviction of the same offense must be “fully credited,” and a trial judge seeking to impose a greater sentence on retrial must affirmatively state the reasons for imposing such a sentence.

The United States Supreme Court considered two respondents’ writs for habeas corpus in their decision. The first respondent, Pearce, was convicted of assault with intent to rape and sentenced to twelve to fifteen years. His first conviction was reversed in a state court proceeding because his involuntary confession was improperly admitted in his first trial. On retrial, he was convicted and sentenced to an eight-year prison term. Both the state and Pearce agreed that this sentence, combined with his previous time served, amounted to a harsher sentence than he had originally received. His conviction was affirmed on appeal to the Supreme Court of North Carolina. Pearce then brought a habeas proceeding in federal court, and the federal district court as well as the Court of Appeals for the Fourth Circuit both declared that Pearce’s new sentence was “unconstitutional and void.”When the state failed to re-sentence him after sixty days, the federal court ordered Pearce to be released. At this point, the Supreme Court granted certiorari.

The second respondent, Rice, plead guilty to four counts of second-degree burglary, and he was sentenced to ten years in prison. The judgment was set aside in a state court proceeding two and a half years later, after Rice successfully argued his constitutional right to counsel was violated at trial. He was retried in Alabama state court, convicted, and sentenced to twenty five years in prison, with no credit given for the time he had already served. In his habeas corpus petition, the federal district court and Court of Appeals for the Fifth Circuit declared that the increased sentence was a violation of due process and “unconstitutional.” The Supreme Court granted certiorari.

About twenty years after Pearce was decided, the Court  overruled Pearce by implication in Alabama v. Smith, 490 U.S. 794 (1989). As a result, current jurisprudence interprets Pearce’s holding to provide a defendant with a “rebuttable presumption of vindictiveness.” This doctrine of a rebuttable presumption of vindictiveness, absent an affirmative indication of objective facts justifying an increased sentence, is referred to as the Pearce Principle.

If the presumption of vindictiveness arises, it may be rebutted by showing that a legitimate and objective reason supported the change in the indictment or the basis for the indictment itself. However, if no presumption of vindictiveness arises, the defendant may show that the prosecutor was actually vindictive in her prosecution. The defendant may present direct evidence showing that the prosecutor was vindictive.

Additionally, if the prosecutor bases their decision of whether to prosecute on the basis of race, gender, or ethnicity than the prosecutor may be guilty of selective prosecution. A claim of selective prosecution must be raised in a timely manner before the trial has commenced, otherwise the claim may be regarded as untimely and waived.
In order for the defendant to prevail on a selective prosecution claim they must overcome a strong presumption that prosecutors have properly performed their duties. A selective prosecution claim is typically analyzed in accordance with the equal protection standards; the defendant must produce evidence that shows that the prosecutor engaged in selective prosecution which had a discriminatory effect upon the defendant, and that the prosecution was pursued with discriminatory intent.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. 

8th and 14th Amendments Violated by Capital Life Sentence Without Parole

Capital Life without Parole is Unconstitutional.

Amendment VIII:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Amendment XIV (Section 1):
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From November 1981 through January 1982 the US Supreme Court argued the case of Eddings v. Oklahoma (455 U.S. 104).
Eddings, a 16-year-old youth, was driving a car on the Oklahoma Turnpike when he momentarily lost control of the vehicle. He was signaled to pull over by an Oklahoma Highway Patrol officer; when the officer approached the car Eddings stuck a loaded shotgun out of the window and fired, killing the officer.

The State moved to have Eddings certified to stand trial as an adult, where he was charged with murder in the first degree: the District Court found him guilty upon his plea of nolo contendere. The Oklahoma death penalty statute provides in pertinent part that  "In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." However, even though the Oklahoma Statutes list seven separate aggravating circumstances; the statute nowhere defines what is meant by "any mitigating circumstances."

 At the sentencing hearing, the State alleged three of the aggravating circumstances. In mitigation, Eddings also presented substantial evidence of his troubled youth. Psychological reports stated that Eddings had a sociopathic or antisocial personality, was treatable, and could be rehabilitated by intensive therapy

At the conclusion of all the evidence, the trial judge weighed the evidence of aggravating and mitigating circumstances. He found that the State had proved each of the three alleged aggravating circumstances beyond a reasonable doubt, but he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance. Finding that the only mitigating circumstance was Eddings' youth and finding further that this circumstance could not outweigh the aggravating circumstances present, the judge sentenced Eddings to death.

In this case, the Supreme Court held that the death sentence must be vacated as it was imposed without "the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases (as per Lockett v. Ohio, 438 U.S. 586, 606).
Further, they stated that:

 "The Eighth and Fourteenth Amendments require that the sentencer... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 

Another case with similar repercussions was Miller v. Alabama, in which the Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. The decision of the court was based on two consolidated cases, Jackson v. Hobbs, (10-9647) and Miller v. Alabama, (10-9646).

Both cases involved 14 year old juveniles; Kuntrell Jackson was involved in a robbery with two other teenagers, one of whom killed a store clerk. Jackson was charged as an adult and given a life term with no parole. In the second case Evan Miller was convicted of murder after he and another boy set fire to a trailer where they had bought drugs from a neighbor. He too was given a life term with no parole.
The United States Supreme Court heard oral arguments in both cases on March 20, 2012. In an opinion delivered by Justice Kagan on June 25, 2012, the Court held that:

Mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments and that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.

Justice Kagan’s majority opinion stressed “...the evolving standards of decency that mark the progress of a maturing society.”

Although the Supreme Court has ruled that juveniles cannot not be sentenced to life in prison without the possibility of parole, the Texas Penal Code Sec. 12.31 still mandates life without parole in capital murder cases involving adult defendants where the death penalty is not sought. As in the Oklahoma statutes, the judge may be precluded from considering mitigating circumstances such as the psychological condition of the defendant while still considering all of the aggravating circumstances. Due to this inherent imbalance, aggravating circumstances in capital murder cases consistently outweigh any possible mitigation.

Houston attorney George Parnham believes that the impact of mandatory life sentencing in capital cases involving defendants with mental illness violates both the 8th and 14th amendments to the United States Constitution. In March of 2009 George Parnham, along with Texas State Rep. Jessica Farrar, introduced legislation to modify the penalty phase of trials in which a mother’s mental illness was a mitigating factor. This legal modification has been accepted by other countries, but not yet in the U.S.
Mr. Parnham’s insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention.