Sunday, May 16, 2010

Judge won't let AG dismiss charges for want of evidence

"What happens when the Texas Attorney General’s Office tries to drop the charges against a defendant for want of evidence and the presiding judge denies the motion?" asks Rev. Alan Bean at the Friends of Justice blog, commenting on a case out of Paris, TX. Writes Bean:

The AG’s Office took over the case against Vergil Richardson and several family members when District Attorney Val Varley was recused from the case. Varley showed up at the scene of the drug bust (see details in the story below) brandishing a fire arm. This made him a potential fact witness and led to his recusal.

One gets the impression that Judge John Miller ... is behaving as if his good friend (and legal tag team partner) Val Varley is still prosecuting the case. But what is the special prosecutor supposed to do now? When you have established that you don’t have enough evidence to go to trial and the judge sets a trial date anyway how do you proceed?

How, indeed?! See coverage of the case from the Paris News.

MORE: A commenter points out that the prosecutors' association has a discussion string on this subject.

27 comments:

Anonymous said...

Defendant owns home, does not live there but was visiting when drugs were found. Somewhat of a nexus.

Apparently 12 citizens seated on a Red River County grand jury thought there was enough evidence to bind the defendant's over for trial. Now it's a fact decison to be determined by a petit jury and not the prosecutor.

jigmeister said...

Actually Anonymous, your wrong. A trial judge has no discretion in signing off on a dismissal. It is a ministerial function and if the AG seeks a mandamus, the judge will be ordered to signoff.

Gritsforbreakfast said...

Thanks Jig, good info.

Ryan Paige said...

I went to high school with the special prosecutor.

Didn't even know she was an attorney. I probably should've gone to a reunion or two.

85tiger said...

Or if you are the prosecutor who really thinks this case is crap and the judge is insisting you try it, you could go to trial and not present any evidence. The court then has no choice but to find the defendant not guilty. Jeopardy has now attached so no retrial and following acquittal, the defendant is then entitled by statute to an immediate expunction of his record.

Anonymous 8:17, mere presence does not equal guilt beyond a reasonable doubt.

Anonymous said...

There is a long track record of corruption in Red River County. DA Val Varley is dirty and corrupt. Judge John Miller is also corrupt. This all stems from a vendetta against a lawyer named Mark Lesher and it all ties back to him. Interestingly enough, the Asst AG Habersang, is a former Asst DA in Bowie County and has practiced in from of John Miller before. Dig around into Judge John Miller, DA Val Varley, Attorney Mark Lesher and Red River County Texas and you will begin to unravel the story. It is about more than this particular incident.

Alan Bean said...

The backstory to this case reads like a Grisham novel with a little Stephen King thrown in. Hopefully, Jigmeister's solution will take effect and this idiocy can be laid to rest.

Anonymous said...

jigmeister said a trial judge has no discretion in signing off on a dismissal.

If that is correct, then why does Texas CCP say that no case shall be dismissed without the consent of the presiding judge?

Does that language need to be taken out of the CCP and you lawyers just do what you damn well please?

Anonymous said...

Anyone know where the dope was located in the house in relation to where defendant Richardson was in the home at the time of the search?

Jerri Lynn Ward said...

Did you see this?

http://clarksvilletimes.net/pages/CT-03.pdf

"Richardson said his attorney
has received a proposition from
Miller if he drops the lawsuit, the
case would be dismissed, and he
replied ‘no’."

Anonymous said...

"If that is correct, then why does Texas CCP say that no case shall be dismissed without the consent of the presiding judge?"

Of course, you're essentially also arguing that the judge has no discretion, either, only in the other direction - that he can't sign off on a dismissal if a grand jury has indicted.

Anonymous said...

Art. 32.02. DISMISSAL BY STATE'S ATTORNEY. The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.



Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Nancy said...

Is there any precedent for a judge not signing off on a motion to dismiss?

jigmeister said...

I confess; I'm wrong after researching 32.02. This used to be established law (before I retired), but there is much argument over whether the judge has descretion not to sign. I see where last year the Court of Appeals (in think Texarkana) ruled in this judge's favor over the same issue and ruling that it was not ministerial. I also see that TDCAA members have been batting the issue back and forth. They finally decided that the solution was to pick a jury (as the state has a right to a jury) and rest. Obviously jeopardy attaches and the defendant can never be retried for that offense. I don't know what the AG will do, though I have made an inquiry.

Anonymous said...

"I also see that TDCAA members have been batting the issue back and forth. They finally decided that the solution was to pick a jury (as the state has a right to a jury) and rest."

That seems to establish neglect of duty on the part of the prosecutor since it is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.

If a prosecutor goes to the extreme of voir dire, selecting a jury and the associated costs from doing so and does not present a case and rests, he's going out come next election, not to mention a complaint being filed.

Art. 2.03.(b)Texas CCP NEGLECT OF DUTY

jigmeister said...

Anon: Start with this problem: Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”
American Bar Association Standards for Criminal Justice

3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.

There doesn't seem to be an easy solution. Another option is to file a Motion to Recuse. Though I would think the defense might want to do that. That way a visiting judge decides whether the judge has formed a bias. I am not arguing whether the defendant is guilty or whether the Deputy AG has evaluated the case appropriately. Only what solution there might be when a judge refuses to sign the dismissal and the prosecutor believes the evidence is insufficient. But the very first step a prosecutor makes is based on the above ethical consideration and NO good prosecutor tries someone without confidence in the defendant's guilt.

Alan Bean said...

So it appears that judges don't have to sign off on a motion to dismiss and a prosecutor is ethically bound to dismiss when there is insufficient evidence of guilt. Sounds like procedural rules are at loggerheads with professional ethics. Which takes me back to my original question: What's a poor prosecutor to do?

jigmeister said...

Thankfully, this has never happened to me. If faced with this problem I would attempt a conversation in open court with the defense attorney present where I would remind him of my responsibilities and if worse comes to worse, let him know of my options should he continue to decline. The interesting thing is what might happen when the AG pulls out. The judge could hold him in contempt. Sounds like bad press all the way around. I kinda doubt this judge has thought this through very well. I'll let you know if I get an answer from the AG.

jigmeister said...

Well I got a response, but need to be careful not to get my source in trouble. Apparently the judge wants the AG to withdraw so he can appoint another special prosecutor. However, the AG is not inclined to do that and is "considering their options".

Anonymous said...

I went to high school with the special prosecutor.

Didn't even know she was an attorney. I probably should've gone to a reunion or two.


I knew her a little more recently, and have seen her name pop up in various papers for a while. She has specialized in crimes against children, and although I haven't spoken to her in years I wish I would have kept up with her. She's done some good work, and has guts. Always has had.

Rage

Anonymous said...

There were no drugs found in the house period. The laws have been telling that to the newspapers and anyone who they could. There were no drugs found in the house.

Alan Bean said...

According to the notes I took when first investigating this case, small amounts of drugs were allegedly found in a storage shed that was not connected to the house. 1.8 g of crack; 6.4 grams of meth and 14.3 grams of mj. The young man living in the house apparently had a personal use amount of mj in his pocket. If the physical evidence is legitimate, a case could be made against KT Calloway, and I believe he has accepted a plea bargain. But the other defendants were simply visiting at the time of the raid. My old notes also suggest that the warrant was based on an alleged drug deal that took place before Vergil and the other guests arrived. I wouldn't be surprised if there is no solid corroboration for this alleged transaction, but it does little to implicate anyone but Mr. Calloway. In other words, the AG's office has strong reasons for dropping the charges against Vergil et al and there is a strong possibility that the judge's position in the matter is related to a law suit that Vergil Richardson has filed against the County.

Anonymous said...

"Apparently 12 citizens seated on a Red River County grand jury thought there was enough evidence to bind the defendant's over for trial."

It is a fact in Red River County the GJ does not ask questions. Some have regretted it afterwards...

Texarkana Gazette article April 3, 2010 tells of Grand Jury Foreman who has signed affidavit he felt they were lied to and they were.

Anonymous said...

"Same thing on the Richardson case. Whoever indicted them did not ask questions because it is clear as day, so much was wrong on this case. A Grand Juror should have noticed and examined all the documents to make sure everything was done properly before they voted. Anyone should have seen the Affidavit for the search warrant was done after the search had already been done. And they should have also seen there was no one by the name of JC who was arrested. This is proof the Grand Jury did not ask questions or examine the facts. They were being a rubber stamp for the Prosecutor."

Anonymous said...

Since this Judge is acting as Prosecutor, Judge and jury and is biased in every way--- if the AG office takes some of the steps that has been suggested here, can the Judge over-ride and sentence them anyway?

jigmeister said...

If a jury acquits (finding of not guilty), jepardy attaches and no one can retry him. If no evidence is presented, then the judge must grant a defense motion for instructed verdict of not guilty. If a motion to recuse is granted, another judge is assigned and would presumably sign the dismissal.

By the way, I would still file a mandamus appeal on the grounds that this interpretation of the statute is a violation of the Separation of Powers Doctrine. EG., the judge is deciding who gets prosecuted. That is an executive brance function, not a judicial function. Worth a try.

Anonymous said...

On www.rrpolitics.org, scroll down past the pictures to the Index on the left and choose Sheriff. Lots of stories on there.

On his SO cartoons link, one reads, "Welcome To Red River County where the only rights are what we let you have"