Thursday, January 10, 2013

Prosecutors 'double down' on evidence tampering, now can 'go for broke' knowing judges could bail them out

Recently I'd noticed a remarkable December dissent (pdf) by Justice Patrick Pirtle of the Amarillo 7th Court of Appeals which opined:
I am bothered by the frequency with which prosecutors of this State have turned to section 37.09 of the Texas Penal Code to “double-down” on defendants by seeking a second conviction for “tampering with evidence” when an accused merely acts to dispossess himself or herself of evidence of another crime. I do not believe the Legislature intended section 37.09 to be used in that fashion, and until the Court of Criminal Appeals speaks to the matter, I will continue to view such prosecutions in a circumspect manner.
"I do not believe that section 37.09 criminalizes merely dropping an object or distancing yourself from it," wrote Justice Pirtle, though in that case his two fellow judges on the panel disagreed.

Then on yesterday's Texas Court of Criminal Appeals hand down list, reported the Lubbock Avalanche Journal ("2008 evidence tampering case sent back to Amarillo Appeals Court," Jan. 10), the issue resurfaced. The paper described the latest case thusly:
A Lubbock County jury convicted [Gregory] Thornton of tampering with evidence in a 2008 trial before District Judge Jim Bob Darnell and sentenced him to 45 years in prison. In August 2012, however, the Amarillo-based appeals court overturned that conviction on grounds that the evidence didn’t support the verdict and acquitted Thornton.

Thornton and a woman with whom he was walking were arrested in April 2008 by Lubbock police for possession of drug paraphernalia, a misdemeanor.

A Lubbock County grand jury indicted Thornton on one count of tampering because one of the arresting officers saw him take something out of his pocket and drop it. The dropped materials turned out to be a broken crack pipe and a “Brillo pad.”

“Brillo pad” is a slang term among crack users for a piece of copper scrubbing pad used as a filter under the burning piece of crack in the pipe bowl.

The appellate court noted the arresting officer testified at trial he saw Thornton drop the pipe and saw where it landed. As a result, the Amarillo court ruled Thornton “merely dispossessed himself of the evidence,” but was not guilty of tampering with evidence because he made no attempt to hide it from the officers.

“Appellant never affirmatively acted to make the crack pipe unavailable in a subsequent investigation,” Justice Patrick A. Pirtle wrote for the Amarillo court.
When I'd first read Justice Pirtle's concerns, it never occurred to me prosecutors might use that charging trick to turning a misdemeanor paraphernalia charge into a felony with a 45 year sentence! Wow!

The Court of Criminal Appeals did not dispute Justice Pirtle's analysis that Mr. Thornton did not tamper with evidence, but said they "should have considered whether the evidence was sufficient to support a conviction for the lesser-included offense of attempted tampering with evidence," even though prosecutors did not allege that crime at trial. (See the brief ruling.) Ordering the Amarillo court to evaluate whether Mr. Thornton might be guilty of other, lesser charges the prosecution never sought is itself a shift in the CCA's jurisprudence. Again, from the Avalanche Journal:
The high court, noting that it was considering what turned out to be a landmark decision in criminal cases at the same time, directed the Seventh Court of Appeals to determine if evidence in the trial record could support convicting Gregory Thornton of attempted tampering with evidence.

The decision appears to be one of the first times the Court of Criminal Appeals has applied a decision released in September that allows appellate courts to change a verdict to address a lesser offense even if the lesser offense was not pleaded or included in jury instructions.

That decision reversed a 1999 decision by the Court of Criminal Appeals that said an appellate court could only reform a verdict to a lesser-included offense if the evidence didn’t support a guilty verdict in the greater offense but did fit the reduced charge, and if the lesser offense had been requested by either side in the case or included in jury instructions by the trial judge.
Here's the new case, Bowen v. State, which revised the court's precedents to allow appellate courts to change verdicts to crimes never charged by the prosecution. The purpose of the old precedent, said the court in Bowen, which "was to prevent the State from overreaching and having an unfair advantage over the defendant, has been lost through our subsequent decisions." That prior ruling was "based on the rationale that allowing the reformation of judgments would encourage the State to use a 'go for broke' trial strategy of not requesting a lesser-included offense instruction in order to make it more likely to obtain a conviction for the charged offense." Now, apparently, such "go for broke" tactics are fair game.

In Bowen, the state was engaging in exactly this sort of overreach, seeking first degree felony charges by alleging the amount stolen from a family trust was above $200,000 when, in fact, the "value of the property misapplied was approximately $103,344," which would only justify second degree felony charges. Even so, said the CCA, "the judgment must be reformed to reflect a second-degree felony conviction" instead of acquittal.

I wonder how frequently it happens that misdemeanor charges are bumped up to a decades-long felony sentence based on the sort of prosecutorial ploy used in Thornton? Grits shares Justice Pirtle's frustration at such a sweeping use of the evidence tampering statute, and wonder what consequences might arise from allowing appellate judges to affirm convictions for charges never brought by the prosecution.


Thomas Hobbes said...

When I read Bowen, I didn't see overreach in the cases mentioned; I saw more failure in charging decisions to properly evaluate the elements and whether they could be proved.

Anonymous said...

Is it any wonder why most people don't trust the police, judges or courts? There are so many hypocrites employed by the state of Texas and it's numerouse counties that it's become a fucking laughing stock. Guess that pledge of ethics is just another sham?

Gritsforbreakfast said...

Thomas, they convicted Bowen of stealing more than $200K but could only prove around half that.

Why should prosecutors be rewarded for "failure ... to properly evaluate the elements and whether they could be proved"? Notably, such errors always seem to lean toward the high side, and IMO will become more frequent now that the courts have said they automatically get a mulligan.

Anonymous said...

I think the citizens of your state and this country should be very, very scared! This is nothing but abuse of judiciary power!

Prison Doc said...

Isn't "tampering with evidence" or "evading arrest" just, ah...human nature? I think tampering with evidence is more likely to be a problem among police, criminalists, and prosecutors, reminiscent of the Mark Fuhrman interview made public at the "First OJ Trial".

These charges are reallly just more "enhancements" rather than true crimes.

Thomas Hobbes said...

I never said they should be rewarded; I was simply pointing out that I really didn't see overreach . . . I saw half-assed work done by the prosecutors that should have been corrected long before trial. Requiring the appellate courts to cast about, searching beyond the record for some reason to affirm, is an offensive contortion of their traditional role..

Anonymous said...


Gritsforbreakfast said...

I don't know, Thomas. when prosecutors engage in overcharging based on "half-assed work" that "should have been corrected long before trial," it seems like overreach to me. Whether that's a strategic decision or simply because they're so used to the courts rolling over for them that they think they can get away with "half-assed work" seems to me a distinction without a difference, though I suppose it may matter to somebody.

Prison Doc, you nailed it. One notices nobody was charged with evidence tampering from Smith County in the Kerry Max Cook case, even though prosecutors destroyed evidence without notifying the defense and one of the investigators took evidence home with him as a souvenir/trophy.

sunshine said...

I hate crooked prosecutors. I agree with anonymous. My grandson is 375 miles and because of health and money I have not seen him in over a year. He's brain damaged and has right frontal lobe brain sisures and they give him a case every time he has one so he stays on restriction and can't even call us. AND NOBODY CARES most of them don't bother to answer and when one does they just say oh well he didn't follow direct orders or something stupid like that. It was a lying proscutor that put him there.

Thomas R. Griffith said...

Hey Grits,
Regarding -

"Grits shares Justice Pirtle's frustration at such a sweeping use of the evidence tampering statute, and wonder what consequences might arise from allowing appellate judges to affirm convictions for charges never brought by the prosecution."

I predict that it's shit like this that'll cause one or more people to simply SNAP, resulting in horriffic consequenses.

God have mercy on the Butter Knife industry if the Snappee(s) utilizes one to exact revenge vs. simply just venting / ranting about his / her being wronged at trial and subsequentally again by the referee court's bullshit rullings. Thanks.

Gritsforbreakfast said...

Another thing thatgets me is that the CCA wants the 7th court to consider whether Thornton is guilty of "attempted" tampering with evidence, but the ruling below already held that "he made no attempt to hide it from the officers." If he "made no attempt" to hide it, how could it be attempted tampering?

The whole thing, as TH said above, amounts to "requiring the appellate courts to cast about, searching beyond the record for some reason to affirm," in this case even though the lower court has already said the "attempted" charge wouldn't apply.

Michael said...

Wow...that's really disturbing to consider a system that has so many parts like this broken. 45 years is a LONG time for a crack pipe and some brillo with no crack. And to think that his conviction had to actually be overturned is mind boggling. What is the world coming to these days?

Jozzie wess said...

Grits I just don't,get it how a person could be found not guilty for tampering guilty on attempt to tamper j.s. Ama,Tx