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. 

Misconduct of the Prosecution: Houston Attorney- Part II

Prosecutors are required by law to disclose any evidence that tends to exonerate or exculpate you from criminal charges which could help demonstrate your actual innocence or that could reduce your sentence to you and your defense counsel. Called "Brady material,"  this requirement means that prosecutors must disclose evidence known only to police, agreements relating to witness testimony and any other information that tends to show you may not be guilty. Failures to disclose this and other misconduct by the prosecutor may be the basis for appeal or other post-conviction/post-judgment relief.

Impeachable Testimony: Brady v. Maryland, 373 U.S. 83 (1963)

In 1963, the state of Maryland prosecuted John L.Brady and a companion, Mr. Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had actually withheld a written statement by Boblit confessing that he had committed the act of killing by himself and the defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The Supreme Court held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals' ruling was affirmed.

 Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a confirmed record of knowingly lying in an official capacity.  Brady evidence also includes evidence material to credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant.

Frequently, prosecutorial misconduct is not apparent during trial proceedings; knowledge of misconduct may surface only after a trial has ended. Like all appellate or post-conviction/post-judgment litigation, appeals or collateral challenges based on prosecutorial misconduct involve complex rules and procedures.

 If you believe prosecutorial misconduct occurred in your criminal case, contact Parnham & Associates 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.

Understanding the Grand Jury System, Part 2: Inequities in the Grand Jury System

In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.

Grand Juries have recently made headline news in the USA after they have decline to indict police officers in cases which involved what many people consider unreasonable use of force.

On July 17, 2014, Eric Garner died in Staten Island, New York, after a police officer put him in a chokehold. Medical examiners concluded that Garner was killed by "compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police", however the NYPD policy prohibits the use of chokeholds and law enforcement personnel contend that it was merely a "headlock".
On December 3, 2014 a grand jury decided not to indict officer Daniel Pantaleo, the NYPD officer accused of choking Garner to death. The event stirred numerous public protests and rallies with charges of police brutality. The Justice Department has announced an independent federal investigation.

On August 9, 2014 in the St. Louis suburb of Ferguson, Missouri, Michael Brown, an 18-year-old black man was fatally shot by Darren Wilson, 28, a white Ferguson police officer. The disputed circumstances of the shooting and the resultant protests and civil unrest received considerable attention in the U.S. and abroad, and sparked a vigorous debate about law enforcement's relationship with African-Americans, and police use of force doctrine in Missouri and nationwide.
The Prosecuting Attorney decided to bring the case in front of a grand jury to determine whether there was probable cause to indict Wilson for his actions. On November 24, it was announced that the jury had decided not to indict Wilson. Legal analysts raised concerns over the prosecutor's unorthodox approach, asserting that this process could have influenced the grand jury to decide not to indict, and highlighted significant differences between a typical grand jury proceeding in Missouri and Wilson's case.

Grand Juries almost always indict in criminal cases, with the common exception being cases which involve police officers. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.


There are at least three possible explanations as to why grand juries are less likely to indict police officers; the first is juror bias, in that jurors may tend to trust police officers even when the evidence says otherwise. Second is prosecutorial bias; because prosecutors depend on the police while working on criminal cases, they may be inclined to present a less compelling case against officers.

A third possible explanation may simply be that prosecutors normally only bring a case to a grand jury if they think they can get an indictment. But in high-profile cases such as a police shooting, public pressure can force them to bring charges even if the case itself is weak.

The decisions by grand juries not to indict officers in these and other cases have spurred various proposals to reform grand juries. One measure being considered by Congress would require that in an alleged crime  involving a police officer, the governor would appoint a special prosecutor to conduct a public probable cause hearing that is open to the public. If passed, law enforcement would forfeit federal funding unless they adopt the new rules.
In Texas senators recently introduced bills to eliminate what is referred to as the "key man" or "pick-a-pal" system, requiring the courts to randomly summon jurors instead of allowing a district judge to pick three to five people to serve as grand jury commissioners, who are then charged with finding 30 prospective grand jurors and selecting 12 who qualify. Critics have long argued that grand jurors in Texas are often pulled from those with strong ties to the criminal justice system.
 Some of the current proposals may deserve consideration but they would have greater long-term impact and meaning if they improve transparency within the criminal justice system more generally, and are not limited to cases just involving police. 

Understanding the Grand Jury System, Part 1: Federal Grand Juries

In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.
In certain federal and state crimes, a grand jury is convened to review evidence and hear witness testimony in order to determine if an individual should be indicted. This process is a mystery to most defendants, and even many attorneys are unfamiliar with how to handle the grand jury process.

The "grand jury" was instituted in England about the middle of the twelfth century, intended to determine cause for criminal prosecution. Though originally intended to hold the local community responsible for bringing its malefactors to justice, it has come to be regarded over the centuries as a safeguard against unwarranted prosecution and was incorporated into the Fifth Amendment to the United States Constitution, which provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."


Individuals subject to grand jury proceedings do not have a constitutional right to counsel in the grand jury room, nor do they have a right to confront and cross-examine witnesses. Additionally, individuals in grand jury proceedings can be charged with holding the court in contempt (punishable with incarceration for the remaining term of the grand jury) if they refuse to appear before the jury. All evidence is presented by a prosecutor in a cloak of secrecy, as the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury unless ordered to do so in a judicial proceeding.

Grand jury proceedings are secret. No judge is present; the proceedings are led by a prosecutor; and the defendant has no right to present his case or (in many instances) to be informed of the proceedings at all. While court reporters usually transcribe the proceedings, the records are sealed. The grand jury can compel a witness to testify, but the target of a grand jury investigation has no right to testify or put on a defense.

The most persistent criticism of grand juries is that jurors are not a representative sampling of the community, and are not qualified for jury service because they do not possess a satisfactory ability to ask pertinent questions, or sufficient understanding of local government and the concept of due process. Unlike potential jurors in regular trials grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law. The prosecutor drafts the charges and decides which witnesses to call, and is not obliged to present evidence in favor of those being investigated. The jurors job is only to judge on what the prosecutor produced.

According to the American Bar Association (ABA), the grand jury has come under increasing criticism for being a mere "rubber stamp" for the prosecution without adequate procedural safeguards. Critics argue that the grand jury has largely lost its historic role of protecting citizens from unfounded accusations by the government; they provide little protection to accused suspects and are much more useful to prosecutors.   Grand jurors often hear only the prosecutor's side of the case and are usually persuaded by them: they almost always indict people on the prosecutor's recommendation.

If you have been accused of a serious crime in the state of Texas, you need a reliable and experienced attorney. Visit http://www.parnhamandassociates.com for information on your rights.