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.

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.