Wednesday, April 25, 2012

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:
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."


TominAustin said...

Grits - it is my understanding that in TX the gov can only pardon someone if the Parole Board recommends it. This would seem to limit the govs powers even if he wanted to, he'd have to really twist some arms on the Pardons Board.

Anonymous said...

There are untold thousands of innocent parents doing long prison sentences because of corrupt prosecutors and medical examiners.

Anyone who has a young child die becomes immediately suspected of foul play by authorities. And these suspicions are passed along to the medical examiners conducting the autopsy. If the pathologist cannot readily determine a specific manner of death, many will revert to the detectives "gut hunch" and arrive at a manner of death that supports this.

Harris county has a long, long history of corrupt and incompetent medical examiners. And dozens of innocent defendants have been convicted of murdering children when no real evidence supported the findings of murder other than the "gut hunch" of mostly-inept detectives, and an opinion of a pathologist who was too cop-friendly and had long ago ruled out any possibility of natural death due to SIDS, anaphylactic shock (a severe allergic reaction to vaccines), or other manners that aren't obvious like rare diseases and complications due to premature birth among many others.

In 1998, Chief Medical Examiner Dr. Joye Carter (now with the Southeast Texas Forensic Center) fired an assistant medical examiner who had reported illegal activity at the Harris County Medical Examiner's Office. And no less than a dozen of the cases where Dr. Carter testified for the prosecution that a murder has indeed occurred have been overturned by appeals courts. Carter was soon sent packing when lawsuit awards began to be too expensive for the commissioner's court to pay.

Dr. Patricia Moore (also now with the Southeast Texas Forensic Center) was among the most "cop-friendly" medical examiners in Harris county. During her time in Harris County, Moore attributed infant deaths to shaken baby syndrome at a rate considerably higher than the rate at which it happens in the general population. Once even reprimanded for being "biased in favor of the prosecution" as the document reads.

Be very careful when serving as jurors on these cases. And if you should have a child die make certain to retain legal counsel before speaking with detectives, and be sure to have a second autopsy performed by an independent medical examiner as soon as possible. Otherwise you could be mourning the loss of a child while behind bars just like Brandy Briggs:

Baylor Too said...

We don't know whether Governor Perry will seek reelection. He has hinted that he will seek a fourth full term. So long as he wants people to believe that he might run for re-election, he will never issue a pardon that might create the perception that he is soft on crime (or has a heart).

Gritsforbreakfast said...

Baylor Too, actually Perry has a better record on pardons than Obama, by a longshot (which isn't saying much). IMO it wouldn't be out of character based on his past clemency record. He pardoned the Tulia defendants the year before an election.

benbshaw said...

I read the lengthy article about this case in Texas Monthly. There was nothing in the previous life of the accused that indicated an ability to kill her own child. She had adopted the boy who had an eating disorder. He would wake up in the night and eat, even when he had been fed. All the members of their church testified to the love of both parents for their children. Plus, the choice of salt as a means to kill her child doesn't make sense. The Cajun seasoning that was supposedly used to put the salt in the child's system doesn't even have a salt level on the package. A salt poisoning expert has testified that this method would not even be possible, as the salt would have to enter the system to kill the child. Anyone who has accidently swallowed seawater knows that the body rejects high levels of salt immediately. Their main mistake was not taking the child to the hospital soon enough. Their reluctance to go to the hospital was a combination of a lack of money and a faulty understanding of why the child was sick.

Gritsforbreakfast said...

Tom, generally if the governor wants a recommendation he gets one. As one might expect, he has a great deal of influence with his own appointees.

Kristy @ Little Natural Cottage said...

I have followed Hannah Overton's case for the past four years and am praying fervently for her release.

As a native South Texan I am appalled at the corruption of the system in that area.

I sincerely hope that Gov' Perry has the courage to do the right thing.

Anonymous said...

What a relief to read rational responses. I've been following this case for several years and been sickened at the unintelligent, emotional, irrational conclusions reached by so many, based on circumstantial evidence. This mom may have made some judgement errors, but nothing close to murder, intentional or otherwise. It's very clear that all who rushed to convict her (law enforcement, courts, media and the public) all had personal axes to grind. She's been judged for being a home schooler, a mom of 4+ kids, a Christian, a child of a criminal, a laid back personality... So few have wanted to be bothered with the facts when their prejudices Have clouded all real evidence. Sad for our entire country.

rkollman said...

Anna Jimenez has been charged with four counts of aggravated perjury. The conduct by Ms. Jimenez described in the perjury indictment, which occurred in the context of another capital murder-of-a-child-case, vindicates Sandra Eastwood, the former Nueces County assistant district attorney who successfully prosecuted Hannah Overton for murdering her four-year-old foster child, Andrew Burd, in 2007. The Overton case has received extensive national media attention. Ms. Eastwood's insistence in the Overton case that Ms. Jimenez falsely testified, both by affidavit and at the writ hearing in April 2012 you discussed above, have so far fallen on deaf ears. But the strikingly similar conduct alleged in this indictment occurred within months of Ms. Jimenez's testimony at the Overton writ hearing. And, in yet another bizarre twist to the Overton saga, Mrs. Overton's writ lawyers, including Cynthia Orr, now represent Ms. Jimenez as well. We understand that Ms. Jimenez also has listed among her attorneys one of Mrs. Overton's trial lawyers, John Gilmore. 

We believe this indictment has profound implications in the Overton case. Apparently Ms. Orr and Mr. Gilmore agree, which is why they also now are defending Ms. Jimenez. An indictment for aggravated perjury against a practicing lawyer is a rare event. The indictment carries far greater weight than Mrs. Overton's defamatory allegations about Ms. Eastwood based on Ms. Jimenez's false testimony, which you, the Huffington Post, Texas Monthly, ABC and 20/20, the San Antonio Express News, and others have reported, blogged about, and recklessly repeated, without regard for the truth or falsity of Ms. Jimenez's statements, despite Mrs. Overton's failure to persuade any tribunal of the truth of her allegations. We applaud the Jackson County District Attorney for revealing Ms. Jimenez's capacity for intentional deceit by bringing these perjury charges. We encourage you to continue to report immediately, accurately, and completely all further developments, and that you do so without further defaming Ms. Eastwood, portraying her in a false light, or invading her privacy. This is the beginning of the end for Ms. Jimenez, and for Mrs. Overton. They will not beat the rap or the ride. 

Anonymous said...

sI pray that,"The Innocent Project of Texas" helps with this tragic situation. Mike Ware's email:
As the mother of six grown children, I doubt if many parents were aware of "salt poison", nor even after this attention. I had a son who received wrong treatment while as a patient in two different hospitals, a doctor failed to read the chart correctly and prescribed wrong medicine which caused a seizure, at another hospital a bone graft was done without legal point being educated people make mistakes but are not sent to prison for life. People are human and mistakes are made, this situation seems to be more mistakes were made by the system than Hannan Overton. What about the saline IV given after Andrew arrived at the hospital, what about the "blunt force trauma" than a medical expert "acknowledged the brain hemorrhaging could have been caused by the sodium content in Andrew's blood"..could that have been caused from the saline IV?

Anonymous said...

Following up on rkollman's post from May 3, 2013 -- those trumped up perjury charges were dismissed -- 26 days after your post. (report from Lubbock online below)

Oral arguments were heard in the Overton case today, Apr 2, 2014 by the Texas Court of Criminal Appeals.

Re: BRADY violation: Anna Jimenez, 2nd chair of the prosecution team in the Overton case, agreed with all the defense attorneys, testifying that there was key evidence that defense kept "asking and asking and asking" for but were told did not exist.

I'm not a lawyer -- but that sure sounds like a Brady violation to me. It was evidence favorable to the accused, and it was withheld.

The evidence to which I'm referring is not Dr. Cortes -- that's another matter -- but was the vomit from Andrew Burd suctioned out at the first medical clinic to which he was taken AND the testing done on that vomit by the ME which showed that the saline level in his stomach matched what Overton said she fed him -- and was that of Wendy's Chili with extra Zatarain's.

Neither of those pieces of evidence were turned over to the defense.

Here's the TCCA doing the right thing.