Due Process

Hannah Overton, who is currently serving a life sentence without the possibility of parole, is back in the 214th District Court in Nueces County, Texas for a hearing on her application for a writ of habeas corpus with her writ lawyers lead by Cynthia Orr and assisted by Gerry Goldstein, John Raley and Dayna Jones. In 2007 Hannah was tried in the 214th District Court, Nueces County, Texas. She was found guilty of capital murder by omission in the poisoning death of 4 year old Andrew Burd.

In a rather uncommonly strict remand order, the Court of Criminal Appeals ordered on February 8, 2012 that the trial court must hold a hearing with live testimony within 90 days of the order and that all supplemental findings and conclusions of law must be returned to the Court of Criminal Appeals within 120 days of the order. Justice Cochran, joined by Justices Price and Johnson, issued a statement concerning the remand order. In that statement, Justice Cochran gave direction to the parties and the trial court on what needs to be decided in this matter. “The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence–scientific evidence that will hold under later scrutiny.” Justice Cochran went on to say: “The problem in this case…is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available.” Justice Cochran concluded by stating: “These are not easy issues, but fairness both to the applicant who is serving a sentence of life without parole and to the State and the memory of the child victim, demands that our verdicts will withstand the test of time such that the guilty are punished and the innocent are not. Further, public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence.”

In addition to wading through the scientific evidence, Judge Longoria will also hear testimony concerning whether the state withheld Brady evidence, whether trial counsel were ineffective and whether Hannah is innocent based on newly discovered evidence.
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In San Antonio, Bexar County and the surrounding counties, I have repeatedly had prosecutors tell me during plea negotiations that an offer they made my client was higher than normal due to my client’s prior arrests. Most recently, this week in Hays County, Texas I was told by the prosecutor that the lengthy offer on my client’s misdemeanor possession of marijuana was due to his numerous arrests that only resulted in one conviction for misdemeanor driving while intoxicated. As I explained the substance of these cases, the prosecutor told me he did not care about the facts or that they were all dismissed. He only cared that he had been arrested so frequently. The only way the prosecutor knows about the arrest is by looking at printout in the file and not reviewing the police reports. Although the prosecutors are not the ones who ultimately impose the sentence, their recommendations that consequences that may ensue from rejecting a plea offer (i.e. the prosecutor making a higher recommendation if the defendant goes open to the judge for sentencing).

The Fifth Circuit Court of Appeals recently held in United States v. Johnson that it was error for a District Court Judge to grant the U.S. Attorneys request for an upward departure based in part on the defendant’s prior arrests that did not result in convictions, despite their similarity to the instance offense. The District Court judge even advised that he was not considering the arrests per se, but was considering the underlying course of conduct due to the similarity of the offenses. The Court of Appeals cautioned that the only evidence before the court of the conduct of these arrests were the bare arrest reports, which are unreliable. The Court ruled that taking these arrests into consideration to upward depart from the guideline sentence violated due process.

Thus, in my opinion and in light of the 5th Circuit’s recent opinion, the prosecutors are unlawfully considering unadjudicated offenses when negotiating plea agreements. The previous arrests were dismissed for a reason and therefore should not used against a defendant in future prosecutions.
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Articles Posted in Due Process

Hannah Overton back in Nueces County, Texas for Post-Conviction Writ of Habeas Corpus Hearing

Are San Antonio Prosecutors Considering the Wrong Information During Plea Negotiations? — 5th Circuit Holds it Is Error for Judge to Consider Prior Arrests That Are Not Convictions During Sentencing