Governor should pardon Hannah Overton if habeas petition fails

Pam Colloff at Texas Monthly's Daily Post blog is providing blow by blows of Hannah Overton's habeas hearing evaluating allegedly flawed forensic science, as ordered by the Texas Court of Criminal Appeals. Here's what she's posted so far:

• Hannah Overton Hearing: Day One
• Hannah Overton Hearing: Day Two
• Hannah Overton Hearing: Day Three (added 4/26) 
• Hannah Overton Hearing: Day Four (added 4/27)

Attorney John Raley, who led Michael Morton's defense team, represents Overton, who was convicted of poisoning her 4-year old son with salt based on reportedly shoddy forensics. The San Antonio Express News, however, reports that defense claims that prosecutors withheld evidence in the case fell apart on the hearing's second day. Wrote reporter John MacCormack, whose writing first highlighted the case, "After two days of presenting evidence, Overton's lawyers appear to have made little headway in their quest to prove that her 2007 trial was unfair or that prosecutors cheated."

Whether the defense had access to contrary forensics or not, Grits still is troubled by some of the reported testimony indicating that at a minimum, forensic flaws were minimized if not intentionally concealed. A prosecution witness, Dr. Edward Cortes, testified that "“I told [then-assistant D.A. Sandra Eastwood], I said ‘I hope you’re going to come forward with some other charge other than capital murder ‘cause I don’t think this was capital murder. I don’t think there was intentionally,’" reports Colloff. Instead of changing the charges, though, the prosecution simply didn't call the witness.

MacCormack writes the wind was taken out of the sails of Overton's defense team when it was revealed Dr. Cortes was actually an uncalled witness on the defense witness list, which raises the question of whether the defense failed to adequately prepare. (It's possible, one supposes, courts could afford Overton relief based on ineffective assistance of counsel as opposed to "actual innocence.") But even if the defense could have interviewed Cortes (they did not), more concerning to me is that prosecutors heard that advice from a medical expert but ignored it, downplayed it, and plowed right ahead.

Overton's case demonstrates, as Judge Cathy Cochran wrote in the order granting this evidentiary hearing, how the "disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased." The stakes, as Judge Cochran put it, are high: "public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence," and that's seemingly not what happened here. Bottom line: Can habeas corpus rectify false convictions based on flawed forensics, or have recent court decisions and legislative interventions so restrained the Great Writ that it can no longer perform that function?

Experts seem to agree the forensics weren't legit in hindsight, but when matters of science are decided in the jury box, emotion can too often overwhelm expertise and non-scientist judges are frequently poorly positioned to perform a meaningful gatekeeper function. But when errors happen, one expects institutional actors to exercise their discretion to prevent injustice. To that end, the Express-News called on prosecutors to capitulate in a strong editorial this week which opined:

Nueces County District Attorney Mark Skurka should do the right thing and acknowledge that the sensational prosecution of Hannah Overton for the death of her son was a miscarriage of justice.

Instead, his office is wrongly fighting the exoneration of a woman who is innocent of any crime and is likely the victim of prosecutorial misconduct.

In 2007, a jury in Corpus Christi found Overton guilty of capital murder for forcing her 4-year-old foster son to ingest a lethal amount of salt.

She is serving a mandatory sentence of life without parole.

But as San Antonio Express-News staff writer John MacCormack has reported, the case against Overton — which was prosecuted by one of Skurka's predecessors — was deeply flawed.

His immediate predecessor, Anna Jimenez, who was a member of the Overton prosecution team, acknowledges that the conviction was “an injustice.”

If Overton's habeas petition does not prevail, Governor Rick Perry should pardon her.

MORE (4/26): From the Corpus Christi Caller Times, "Former Nueces County District Attorney: Lead Overton prosecutor had unethical tactics."  According to the Caller Times, "Former Nueces County District Attorney Anna Jimenez testified Wednesday that she thought Sandra Eastwood, the lead prosecutor in Hannah Overton’s case, resorted to unethical behavior during the 2007 trial." The former DA and prosecutor partnered on this case and their relationship has a complicated backstory:

Gerry Goldstein, one of Overton’s attorneys, showed Jimenez a section of a medical examiner’s report with supplemental information from the Police Department. According to the report, an officer was given a sample of Andrew’s vomit from an urgent care center.

Also in the report were photos of stomach content samples at the medical examiner’s office, where the contents were laid out and labeled.

Jimenez said the first time she saw the photos was about a week ago when Cynthia Orr, one of Overton’s lawyers, showed them to her.

Jimenez said the defense attorneys asked for the vomit several times, but Eastwood told her that it did not exist.

“She is not truthful,” Jimenez said of Eastwood.

She said there were several times that Eastwood violated court orders, wasted the court’s time with delays and wanted the jury to feel sympathetic toward her.

Prosecutor Bill Ainsworth argued that Jimenez has no solid proof that Eastwood withheld evidence from the defense.

Jimenez testified that she told Eastwood that Overton should not have been convicted of capital murder.

Jimenez, who assisted Eastwood in the prosecution of Overton, later served as district attorney and lost the election for the position in 2010. Jimenez fired Eastwood that year on unrelated issues.

See also from the Caller-Times, "Witnesses in Hannah Overton's hearing: Flaws in case."