Houston Lawyer: Prosecutorial Misconduct Part I

Prosecutors wield more power than almost any other person in the criminal justice system. They have the ability to either proceed with a case or dismiss charges, to bargain with a defendant for a guilty plea, and to recommend a severe sentence or plead for leniency. Given the breadth of criminal law, a prosecutor can find reason to prosecute almost anybody if they have the time, the money, and the motive. Unfortunately, this unchecked power is always subject to abuse and prosecutors sometimes engage in misconduct.

A prosecutor may commit misconduct when, in the course of their professional duties, they act in ways that are inconsistent with ethical mandates which they are obliged to obey. These mandates are governed by two distinct sets of rules; the legal framework that binds prosecutors so as to ensure due process, which  includes state and federal constitutions, statutory law, rules of criminal procedure, judicial orders, etc., and the ethical standards of the legal profession as expressed in each state bar’s professional codes.
An act of prosecutorial misconduct may violate one or both of these codes. Prosecutors are required to abide by both.
Enforcement of the two codes differs; when prosecutors violate legal rules as part of a criminal case, the primary recourse is for the criminal defendant to ask to have his conviction overturned (or if the trial is in progress, to ask the judge for a mistrial, to strike matters from the record, or to otherwise minimize the damage caused). When prosecutors violate professional rules, the bar complaint process is the primary enforcement mechanism.
One of the greatest threats to rational and fair fact‐finding in criminal cases can result from a prosecutor hiding evidence vital in the defense of a defendant's innocence. Between 1963, when the U.S. Supreme Court ruled in Brady v. Maryland that such a practice is a deprivation of due process, and 1999, at least 381 defendants nationally had a homicide conviction thrown out because prosecutors concealed evidence. Of the 381 defendants, 67 had been sentenced to death. The consequences of such misconduct when it is discovered can be serious. Convictions are reversed, cases are retried, appeals are brought that cost taxpayers millions of dollars, and public confidence in prosecutors is undermined.

Michael Morton

In 1987 Michael Morton was arrested and charged with beating his wife to death in 1986. An investigator in the case discovered testimony that their three-year-old son had witnessed a “monster” committing the crime and that Michael Morton was not home at the time, as well as further testimony from a neighbor about a man with a green van who had been parking for weeks behind the Morton’s home. In addition, a blood-soaked bandanna was later found at a nearby construction site. Although this testimony and evidence pointed to an intruder entering the Morton’s home and killing Christine Morton in the hours after Michael Morton had left for work, the jury would never be presented with it.

After the prosecutor's refusal to call the lead investigator of the case, the defense suspected that the prosecution was hiding evidence. The prosecutor, Ken Anderson, assured that all favorable evidence had been turned over and provided the judge with a sealed file which he claimed contained all the evidence they had collected. However, the testimony and evidence which demonstrated Morton's innocence was omitted.
Questionable testimony of two state experts and a note Morton had left on the bathroom mirror was the only evidence presented by the prosecution, and this was used to prove a theory that he had killed his wife because he was angry she wouldn’t have sex with him. In February 1987, Michael Morton was convicted in a Williamson County, Texas court and sentenced to life in prison.

In February 2005 a civil attorney, together with the New York based Innocence Project, filed a motion for DNA testing in Morton's case; Williamson County District Attorney John Bradley "tenaciously fought" against DNA testing for six years before a judge finally ordered the tests. These tests did, in fact, link another man to Christine Morton's murder. After nearly 25 years in prison Michael Morton was exonerated and finally released from prison on October 4, 2011. The Innocence Project subsequently filed a motion to remove Bradley from further court proceedings, but stopped pursuing it after Bradley agreed to dismiss the indictment against Morton. That same year, the Texas Supreme Court ordered a Court of Inquiry into possible misconduct by the prosecuting attorney. Ken Anderson was now a judge, appointed to the bench by Gov. Rick Perry in 2002.

In 2012 the Texas Supreme Court convened a court of inquiry, finding that there was evidence to support Morton's contention that Ken Anderson had tampered with evidence and should have been held in contempt of court for not complying with the trial judge's order to let him review all possible exculpatory evidence. The court of inquiry began in February, two months later the court ordered Anderson to be arrested, saying “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.” Anderson responded by claiming immunity from any prosecution under the expiry of applicable statutes of limitation. On September 23, 2013, Anderson resigned from his position as district court judge.

The following November, Anderson was found to be in contempt of court and was sentenced to 10 days in county jail, fined $500, and ordered to perform 500 hours of community service. He agreed to give up his license to practice law in exchange for having the charges of evidence tampering dropped. He was released from jail after having served five days.After the plea agreement was announced, it was publicly revealed that Williamson County District Attorney Jana Duty agreed to authorize an independent review of every case that Anderson ever prosecuted, along with every case in which Bradley successfully opposed DNA testing.

On May 16, 2013, Governor of Texas Rick Perry signed Texas Senate Bill 1611, also called the Michael Morton Act, into law. The Act is designed to ensure a more open discovery process. The bill's open file policy removes barriers for accessing evidence. Morton was present for the signing of the bill, which became law on January 1, 2014.

Sanctions for prosecutorial misconduct include appellate reversal of convictions, finding the prosecutor in contempt of court, referring the prosecutor to a bar association grievance committee, and removing the prosecutor from office. However, prosecutorial misconduct persists in large part due to the inadequacy of these penalties. Although an appellate court can reprimand a rogue prosecutor or reverse a conviction based on misconduct, such sanctions still don't hold the prosecutor personally accountable; during the course of a trial, the prosecutor is absolutely immune from any civil liability that might arise due to his or her official conduct. Moreover, the appellate courts can affirm a conviction despite the presence of serious prosecutorial misconduct by merely invoking the harmless error doctrine. Under this doctrine, an appellate court determines that errors were of such a minor or trivial nature that they didn't harm the defendant's rights.

If you believe that you are subject to a wrongful conviction in your case because of unfair or inappropriate actions by a prosecutor, you may be able to base an appeal or motion for post-conviction relief on the grounds of prosecutorial misconduct. Contact us online or call  713-224-3967 today for a free consultation: we will work tirelessly to ensure the best possible outcome for your case.  

Warrantless Search and Seizures: Florida vs. Jardines

In Florida v. Jardines, the Supreme Court ruled that a “sniff test” by a drug detection dog at the front door of a home constituted an unreasonable “search” within the meaning of the Fourth Amendment. In that case, the Miami-Dade police received a “crime stoppers” tip that Mr. Jardines’ home was being used as a marijuana grow house. The police set up surveillance outside of his home and brought a drug detection dog to the porch of his residence. Only after the handler of the dog notified the detective that the dog had a positive alert for the odor of marijuana did the detective obtain a search warrant.

Consequently, the police searched his home, discovered the marijuana plants and arrested Mr. Jardines. After being charged and convicted of marijiuana trafficking, Jardines argued that the sniff test constituted an illegal search without probable cause and thus the evidence should be deemed inadmissible. The trial court granted Jardine’s motion to suppress the evidence, but the Florida Third District Court of Appeal reversed. On appeal, the Florida Supreme Court upheld the trial court’s decision, stating that the search was unlawful under the Fourth Amendment. The state appealed the case and the United States Supreme Court granted certiorari to review the case.

 The Supreme Court affirmed the Florida Supreme Court’s decision by a 5-4 margin along ideological lines. Justice Scalia wrote the majority opinion for the court, joined by Kagan, Thomas, Ginsburg and Sotomayor. Justice Scalia’s majority opinion was focused on a citizen’s property rights rather than the right to privacy. The Court argued that at the heart of the Fourth Amendment stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
The Court conceded that police officers have the right to engage a homeowner in a “knock and talk” for the purpose of gathering evidence without a warrant as homeowners have reasonable expectations that the public will approach their door. However, Scalia pointed out that homeowners do not license visitors to “explor[e] the front pant with a metal detector” or the police to “peer into the house through binoculars with impunity.”

The Court determined that bringing a drug detection dog onto a person’s property to obtain evidence without a warrant was an unreasonable search within the meaning of the Fourth Amendment. Although the majority opinion did not address whether Jardines’ privacy was implicated by the search, Justice Kagan wrote a concurring opinion, joined by Ginsburg and Sotomayor, arguing that both his privacy and property rights were implicated. The concurring opinion analogized drug detection dogs to the high-powered binoculars referenced in the majority opinion and argued that where a device is not “in general public use,” and is used to obtain evidence in one’s home, it violates a persons “minimal expectation of privacy.

The Fourth Amendment to the U.S. Constitution defines the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. If you have been subjected to an unreasonable search by law enforcement, contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com. for a free consultation. We are dedicated to protecting your Constitutional Rights.

The Sixth Amendment “Confrontation Clause”

The Sixth Amendment to the Constitution confers numerous rights on the citizens of the United States in regards to their defense in a criminal prosecution. One of the most important of these is found in what is referred to as the “Confrontation Clause”, that is, the defendant’s right to be confronted by the witnesses against them in a criminal prosecution.

The importance of this right was recognized following the trial of Sir Walter Raleigh for treason in 1603. At his trial, Raleigh was convicted largely based on a letter implicating him for treason, written by alleged accomplice Lord Cobham. Despite Raleigh’s objections, Lord Cobahm was never brought before the court to testify; instead, the letter was simply read to the jury without allowing Raleigh the opportunity to cross-examine him. Raleigh was convicted by the jury, sentenced to death, and eventually executed without ever being given the opportunity to confront Lord Cobham about his claims. Later one of Raleigh’s trial judges would lament, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

Since Raleigh’s trial the defendant’s right to confront and cross-examine witnesses against him in a criminal prosecution has been regarded as paramount to conducting a fair trial. Prior to the founding of the United States, several colonial governments such as Pennsylvania, New Hampshire, Delaware, and North Carolina included the right of a defendant to confront witnesses in a criminal trial in their individual Declarations of Rights. The First Congress of the United States agreed with colonial advocates of this right and enshrined it in the Sixth Amendment of the Constitution, which reads;

 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” 

Recent Supreme Court decisions have reiterated the importance of the Confrontation Clause in the context of a criminal prosecution: these decisions have rejected attempts by the government in both State and Federal prosecutions to admit unconfronted testimony as evidence against defendants. The Supreme Court has also denied the use of recorded statements of witnesses who are unavailable to testify at trial, as well as unconfronted scientific data collected government agencies. Just as the inclusion of Lord Cobham’s letter undermined the Court of England’s ability to ascertain the truth in Sir Walter Raleigh’s trial, the Court has noted that the reliability of a witness’ testimony can only be assessed through “the crucible of cross-examination.”

Challenging the government’s use of evidence on Sixth Amendment grounds can be a complicated matter and can mean the difference between conviction and aquittal of an alleged crime. Because of the importance of this right and its application, it is crucial to be represented by an attorney capable of navigating this area of the law.

 If you have been accused of a crime, contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you, and we will work tirelessly to ensure the best possible outcome for your case.

Habeas Corpus: a fundamental instrument in safeguarding individual freedom.

Habeas corpus is a Latin phrase meaning literally "you have the body" - historically, the concept dates back at least to the signing of the Magna Carta in England in 1215 but the actual procedure was first codified in English law in 1679. In legal terms, a writ of habeas corpus is a judicial mandate ordering that a person be brought before a judge or court so it can be determined whether or not that person has been convicted lawfully. Prior to its implementation a person could be imprisoned indefinitely without being charged with any particular crime, a practice which was often used to silence political or religious dissent; by petitioning for habeas corpus, a prisoner (or someone acting on their behalf) could request a person in authority to present charges and determine whether they have actually broken any laws.

Today habeas corpus is considered a fundamental right in many countries, including the United States: The Suspension Clause of the United States Constitution specifically includes it, stating that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In addition to Federal law, many States (including Texas) also specify provisions for habeas corpus, and it has been called "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

There are two parts to the process of habeas corpus: firstly, the person charged (or someone acting on their behalf) files a petition for habeas corpus which questions the legality of the charges. If the petition is successful, a judge will issue a writ of habeas corpus. This is an actual order for the person to be brought to court. Habeas corpus can be used in various situations, such as to challenge the amount of bond or to challenge a contempt order, but most commonly it is used to attack a final conviction after all appeals have been decided and while the person is still under restraint. While "restraint" commonly refers to imprisonment, the definition has been expanded in Texas to include some other effects of a conviction such as probation. In fact, the final conviction itself may meet the restraint requirement because it can be used to increase punishment for a subsequent offense.

It is also important to note that habeas corpus is generally limited to constitutional claims such as suppression or failure to disclose evidence, a conviction based on perjured testimony, ineffective assistance of counsel, the use of an involuntary or coerced confession or jury misconduct or bias.

Petitions for writs of habeas corpus may be filed in both state and federal court. Although federal courts may be more sympathetic to habeas corpus claims than state courts, federal writs must be filed within one year of a conviction becoming final. In Texas a state writ may be filed at any time after your conviction is final, but the court could dismiss your application under the doctrine of laches, which basically asserts that the claim has unreasonably delayed.

Petitioning for a writ of habeas corpus is often the last chance a wrongly convicted person has to overturn the charges against them. Because of this it is vital to be represented by attorneys with the skill and experience to navigate this complicated area of law. In a recent Texas case, Parnham and McWilliams have convinced a judge to vacate a first-degree felony conviction based on unfounded charges of sexual assault after petitioning for and acquiring a writ of habeas corpus in the case. 

If you have been accused of a crime, contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you, and we will work tirelessly to ensure the best possible outcome for your case.