Hannah Overton prosecutor on the dock

I wouldn't do justice to the recounting, so interested readers should see coverage by Texas Monthly's Pam Colloff, from John MacCormack at the San Antonio Express News, and Michelle Villareal at the Corpus Christi Caller Times of day three of an extraordinary evidentiary hearing in Hannah Overton's habeas corpus writ. Suffice it to summarize, once Overton's attorneys interrogated the prosecution team on the stand, prosecutorial misconduct allegations are back on the table, even though the Nueces DA's office had successfully chipped away at the allegation the day before. For convenience, here's Colloff's complete coverage of the evidentiary hearing for Overton's habeas writ so far:

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

At the Caller Times, Villareal is liveblogging today's events at the hearing.

Of course, this development only reinforces Grits' sense that the Governor should pardon Hannah Overton if her habeas petition fails.

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."

Reaping what you sow at the body farm

I don't know what if anything it says about us, but there are five "body farms" in the United States where scientists perform real-world studies on how corpses decay, and two of them are in Texas, at Sam Houston State and Texas State Universities. AP has a story about the body farm in San Marcos (TSU), which has been studying the relation between vultures and decomposition, including findings that could have implications in possible innocence cases.

“If you say someone did it and you say it was at least a year, could it have been two weeks instead?” said Michelle Hamilton, an assistant professor at the school’s forensic anthropology research facility. “It has larger implications than what we thought initially.”

The vulture study, conducted on 26 acres near the Texas campus, stemmed from previous studies that used dead pigs, which decompose much like humans. Scientists set up a motion-sensing camera that captured the vultures jumping up and down on the woman’s body, breaking some of her ribs, which investigators could also misinterpret as trauma suffered during a beating.

Grits first heard about Texas' body farms last year from an SHSU prof who was excited by the work, and indeed, in its macabre fashion, this is important, cutting edge stuff, applying the scientific method to subjects about which medical examiners have given expert opinions for years with little hard data to support definitive conclusions. Fascinating stuff.

Executing innocents still okay after SCOTUS cert denial; will Texas take them up on it?

Like Pontius Pilate washing his hands of the dispute, the US Supreme Court yesterday declined to consider the question of whether the US Constitution permits the execution of an innocent person if the government has not violated their due process rights. The issue could have been taken up in the Texas death-penalty case of Larry Swearingen, but SCOTUS denied cert (i.e., they refused to hear it). Reports Bloomberg News:

Questions about the constitutionality of executing an innocent person are a “brooding omnipresence” in federal law that have “been left unanswered for too long,” Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen’s appeal “might be the very case” for the Supreme Court “to recognize actual innocence as a ground for federal habeas relief,” Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1998, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1998, on unrelated warrants and has been in jail ever since.

Swearingen’s lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn’t considered at Swearingen’s trial and now agree that Trotter’s body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen’s arrest.

More than that, Swearingen’s lawyers say medical examiners who looked at tissue samples say Trotter’s internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has “an airtight alibi -- he was in jail when the victim was murdered.”

Imposing the death penalty on someone who isn’t guilty of a capital crime, Swearingen’s lawyers said, would violate the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process protections.

Texas authorities said strands of Trotter’s hair were found in Swearingen’s truck, and fibers matching Swearingen’s jacket, bedroom carpet and truck upholstery were found on Trotter’s clothing. Cleaning Swearingen’s trailer after Trotter’s body was discovered, the suspect’s landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

For readers interested in more detail, Jordan Smith at the Austin Chronicle last year had an excellent, detailed article explicating the new forensic evidence in the case.

The question is, can habeas corpus reviews by appellate judges only examine procedural questions or if defendants can ask for relief simply based on actual innocence, as in, "I didn't do it." The issue is most poignant in capital cases like Swearingen's where the punishment is permanent, but the implications are even more far reaching.

While it almost seems offensive to say the Constitution permits the execution of an innocent person, as Bloomberg News put it, "as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution." It remains thus with this disappointing SCOTUS non-decision. (Of course, the Constitution's authors envisioned that a robust pardon power would prevent such injustices, but Goveror Rick Perry's pardon record provides only glimmers of hope that that might happen in Swearingen's case.)

In addition to the hot-button culture-war question of whether the Constitution permits executing the innocent, Swearingen's case also implicates Texas habeas law. The Court of Criminal Appeals belatedly ordered a hearing on the new scientific evidence, which coincidentally began in Houston yesterday. Reported the Houston Chronicle:

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Depending on the outcome of that hearing, perhaps this case will give the CCA an opportunity to overturn their despicable misstep in Ex Parte Robbins.

What a remarkable case. SCOTUS chickened out on addressing perhaps the most high-stakes question in constitutional law, which leaves the matter in the hands of the Texas Court of Criminal Appeals, and thereafter quite literally at the mercy of the Board of Pardons and Paroles and Gov. Perry.

This is not the Todd Willingham case where new expert testimony was elicited at the last moment when courts and the Governor had little time to consider it. If Swearingen is executed despite hard scientific evidence of actual innocence, it will have happened following a slow, deliberate process whereby, from Washington to Austin, those responsible for ensuring the integrity of the system chose to look the other way.

Nuther challenge to Harris Co. ME: Called administrative and judicial officers by county at different times

A second attorney has filed claims that Harris County medical examiner reports are invalid based on researcher and occasional Grits commenter David Fisher's findings that most of them had not signed constitutionally required oaths of office or bribery statements which are seemingly required for them to perform their duties. Michael Reed at Houston Community Newspapers proivides a good overview of the issues at stake based on recent court filings ("Legal standing of Harris County medical examiner at issue," Jan. 13):

In a Sept. 15, 2011 opinion, ... Glen Van Slyke, assistant county attorney, wrote that the medical examiner is not an appointed public “officer,” but rather an “administrative employee” of the Commissioners Court. As such, holding the position does not require taking an oath of office or providing any written statements.

Oddly, in 2009, Harris County went before the 1st Court of Appeals to argue that Sanchez was a judicial officer and as such could not be barred from performing an autopsy opposed by the deceased’s family for religious reasons.

Harris County was joined in its position by Tarrant, Dallas, Bexar, El Paso and other medical examiner counties. When challenged later, each of these, unlike Harris County, executed the oath and statement as required by the state Constitutional.

Sanchez, through a spokesman, declined to comment Friday.

In the 2009 case, Harris County vs. Afsaneh Saghian, the court ruled “the Medical Examiner of Harris County is a judicial officer and that it is manifestly improper for a district court to enjoin him from performing duties which he deems — in a valid exercise of his discretion — to be necessary and required of him by statute.”

That may be for the best from the county’s vantage point. If the medical examiner is not a judicial officer, according to the defense attorneys, an even bigger problem arises — one that could result in criminal charges, rather than constitutional violations.

Unlike in many other states, physicians in Texas are prohibited by state law from taking part in “corporate practice of medicine.” In other words, doctors cannot practice medicine that is “any way controlled or directed” by a non-physician. This, according to Bollinger, includes partnerships and employee relationships.

“A non-physician cannot hire a physician to be a physician except in very limited exceptions,” Bollinger’s motion said. “None of those circumstances or exceptions apply to the claimed relationship between the Commissioner's Court and the Harris County Medical Examiner.”

Possible penalties for practicing corporate medicine include $1,000 fine for each violation with each day a separate infraction, and the possibility of third-degree felony changes for each violation against the doctor in question.

“Each of these penalties could be applied to both Sanchez and the employer, who the county attorney claims is the Harris County Commissioner's Court,” the motion said.

That would entail roughly 1,750 civil violations and criminal offenses on the part of the both parties since Sanchez took office, January 2003.

The underlying issues may seem like bureaucratic trivialities, but at the same time, the county clearly is in a bind, having argued to an appellate court in 2009 that the ME is a judicial officer (when they wanted to maximize the office's authority to override family religious prerogatives), but now contradicting themselves to say the ME is an administrative employee in order to wiggle out of the Catch-22 they're caught in.

Other counties faced the same dilemma and most went ahead and had their ME file the relevant oath and bribery statement, but it's an open question what the implications would be if a court found MEs work in past cases was invalid, and it's not just Fisher and a few defense attorneys who suspect that may be the case. As Grits noted last year when this came up, "The Webb County Attorney had declared that 'Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void.' Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they 'void' as well?"

I can't speak to which legal position is correct, but even if Fisher and Co. are right, it would take great courage for a judge to side with them, raising questions about dozens if not hundreds of inquests in murder and manslaughter cases performed while documentation was inadequate, not just in Harris County but potentially in many jurisdictions, if a single judge cracks the door open. Scott Durfee at the DA's office told Reed that they're paying little attention to the issue at the moment (perhaps distracted by proceedings at the grand jury), but "that would change, if an adverse ruling were reached." Indeed, if that happens, a lot of things could change. For want of a nail, the shoe was lost ...