Breath Tests for DWI Aren’t Reliable; BAT Vans Compound the Likelihood of Error

However, the use of roaming mobile breath test labs on Texas roadways is taking things to a higher level of threat.  These “BAT Vans” look like recreational vehicles with police department logos on the outside; on the inside, they are set up as laboratories with seats for medical technicians, cops, or nurses – as well as the lab equipment to perform drunk driving tests on the road.  To learn all about these vehicles, just visit the website for Brown Specialty Vehicles which makes and sells these things around the country.

It’s well known that these vans are conducting tests that can be flat out wrong.  Breath tests aren’t all that reliable, no matter how law enforcement pretends that they are.  However, the BAT Vans add another level of error to the whole thing:  seems the vans themselves can mess with the test results, because of electrical issues and such.  For more on how these BAT Vans can taint test results, read this post by Grits for Breakfast.

HPD Crime Lab Tech Supervisors Quit Over BAT Van Problems

Or read the testimony from this past summer, when former Houston Police Department Crime Lab worker Amanda Culbertson testified under oath that she – along with TWO OTHER technical supervisors quit their jobs (in THIS ECONOMY) because no one was respecting their complaints about serious problems with the BAT vans and their Breathalyzer results.  Culbertson explained that there were electrical, mechanical and temperature issues which might influence the test results.

Back then, Harris County District Attorney Patricia Lykos issued a media statement in response to Culbertson’s testimony: “We sponsor the crime laboratory’s scientific evidence in our prosecutions. Accordingly, we have a responsibility to ensure that the evidence was collected and analyzed properly.”

So did the Houston Police Department: “At this time, HPD is not aware of any tests being compromised due to temperatures within the BAT vans. We were alerted to past air conditioning problems within the BAT vans and have worked to correct the issue by installing rear air conditioning units in the vans. Additionally, all officers operating the BAT vans have been trained on the proper procedures to allow for air conditioners to work properly. Vans not kept at the proper temperature settings do not cause the instruments to give false readings. Instead, the instruments would not give a reading at all, thus preventing any invalid tests.”

The BAT Vans Controversy in DWI Cases – Harris County District Attorney in the Hot Seat as DA’s Office May Face Criminal Charges

Those statements may come back to haunt them now.  First, a Harris County judge heard a challenge to a Driving While Intoxicated (DWI) conviction and agreed with the defense attorney.  The judge overturned the DWI conviction because it had been based upon a BAT van lab result – and the judge found that both the Houston Police Department and the Harris County District Attorney did not reveal information about these BAT Vans to the defense.

Seems that the District Attorney’s Office and the Houston cops knew about the problems with these BAT vans and they didn’t bother telling anyone.  Like the defendant in the drunk driving case where the BAT Van was being used to convict him of driving drunk.

What made the Houston criminal court judge think there was a secret about the BAT Vans that the police and the prosecutors both knew about?  Well, seems there were emails.  And apparently other legal documents.

Grand Jury Probe Into Harris County District Attorney and HPD

A grand jury investigation began.  A special prosecutor was appointed.  And yes, the grand jury is investigating possible criminal acts by the District Attorney’s Office of Harris County.

Things got messy fast.  By November, two of the top deputies in the DA’s Office and two court reporters were subpoenaed before the Grand Jury to explain how secret grand jury testimony transcripts somehow got into their hands.

Here’s the deal: instead of hiding all this stuff, if there is a problem with the BAT Vans then the District Attorney’s Office is legally required to reveal the problem.  Their goal is suppose to be justice after all, not a winning conviction record.

The question soon became not IF there was a shared secret, but when did the police and the DA know about the BAT Van problems.  Which is why this week, Houston District Attorney Pat Lycos had to appear before the Harris County Grand Jury to testify about when she knew and what she knew about these BAT vans.

There’s more than one serious issue here.  Sneaky circumvention of a defendant’s right to a fair trial, sure.  Ignoring the oath to seek justice, sure.  However, there’s one more thing that should be important to all of us:  law enforcement has RVs roaming around, pulling people over for breath tests that are known to give flaky results … and that’s been okay over in Houston, apparently.  Couple that with the growing popularity of the 24/7 No Refusal campaigns, and you have to wonder about how endangered our due process rights are these days.

Prosecutor Points Finger at Lawyers Acting For Michael Morton of Underhanded Dealings

Two days ago, the prosecutor at Michael Morton’s criminal trial, former Williamson County Prosecutor Ken Anderson, filed his official brief in the formal court record where he claims that Mr. Morton’s attorneys have acted in a down and dirty manner in their accusations against Anderson.

According to Anderson’s brief, the Morton attorneys have lied, they’ve not been fully forthcoming with known facts, and they’ve spun their description of what is in the trial court transcripts and evidence filings. That’s right:  Morton’s DNA proved him innocent, and now Anderson is another victim of injustice.

Anderson is claiming that Morton’s lawyers zipped past the line of zealous representation into evildoing here, all in order to accuse Anderson, as the prosecutor, of holding back evidence that if introduced at trial might well have meant Morton, as an innocent man, would not have been unjustly incarcerated.

Judge Sid Harle and the Court of Inquiry

Ken Anderson didn’t throw the first punch here; his brief with its exhibits is filed in response to a report presented to the Honorable Sid Harle, a district court judge out of San Antonio who was appointed by Texas Supreme Court Chief Justice Wallace Jefferson to preside over The State of Texas v. Michael Morton.  The report was filed by Michael Morton’s lawyers, and within the report were allegations that Ken Anderson, while a Williamson County prosecutor in the Morton criminal trial, undertook actions that necessitate a Court of Inquiry under the Texas Code of Criminal Procedure.

If Judge Harle goes forward with the inquiry, it will be a Major Big Deal – these things just don’t happen very often (read that EVER).  Experts are calling the fact that Morton’s even requesting the darn thing an “extraordinary legal event.”

As for what was hidden at trial and for which the Morton attorneys are requesting Harle to investigate the prosecution’s action, read our earlier post detailing the evidence that never made it to the criminal trial courtroom.   Smells real fishy, doesn’t it?

Gets worse: after Morton was freed, investigations into possible prosecutorial misconduct heated up and among other things, as reported to Judge Harle in the December 19, 2011, request for a formal inquiry, Ken Anderson reportedly did sneaky stuff like moving to bar Morton’s son from testifying at trial, and also taking steps to keep the defense from getting ahold of an investigator’s notes.

Read the entire Anderson brief online here.

As for the likelihood that this thing – this Court of Inquiry – is going to have a real life, check out Grits for Breakfast’s take on things.  One of Grits‘ good points — if a Texas judge and a Texas prosecutor can be having an affair during a murder trial and not get disciplined in any way for it, even the United States Supreme Court did nothing, then who’s taking bets on this case?

To recollect that love story, read our post here.

When rights are taken from you, there’s usually no advance invitation sent – the quieter the grab, the better.  Which is why we’ve been monitoring the No Refusal campaign here and why it’s good to see the national media taking note of what is happening here in Texas.

In this week’s Wall Street Journal, there is a lengthy discussion of Texas’ “no refusal” campaign, which the WSJ has labelled a “blood-test policy.” Included in the WSJ article is an overview of how No Refusal campaigns are getting to be as popular as the Kardashians here in Texas as well as gaining in popularity in other states, like Florida and Louisiana and Illinois.

Over at Fox News, there’s also some media coverage of Texas’ No Refusal campaign.   Included there, some discussion of the basic constitutional issues that the No Refusal campaign brings with it.

Here in Dallas,  people are taking notice.  In D Magazine’s FrontBurner column this past Tuesday, Michael Mooney pondered what the No Refusal campaign really means to everyone, and ends his article with the realization that allowing the police power to take your blood out of your body AGAINST YOUR WILL is “terrifying.”

That’s right, Mr. Mooney – it is terrifying.  People need to get what is going on here.

Texas DWI No Refusal Campaign Violates Constitutional Rights.

Let’s consider what is happening down in San Antonio because we know that Dallas and Fort Worth and Houston and every other district attorney in this state is watching San Antonio’s head prosecutor Susan Reed to see how well her No Refusal prototype works out.   Reed has implemented a No Refusal Campaign in Bexar County not just for holidays or three-day weekends, but every single day of the week.

In Bexar County right now, the No Refusal Campaign is in place 24/7/365.  It’s been okayed and funded by the State of Texas’ Department of Transportation grant of $1.4 million, by the way.

This means that any person who is pulled over by law enforcment in the San Antonio area can be forced to have their blood drawn – and the traditional hurdle of having a hearing or some kind of argument against that search and seizure is out the window as judges are on standby to rubber stamp search warrants allowing the blood to be drawn.

It’s a standardized procedure in the Alamo City right now.  Get pulled over, and refuse to take a breath test, and the San Antonio law enforcement will put you in their vehicle and drive you down to the nearest magistrate’s office.  There’s a judge at the ready to sign a search warrant to allow the blood to be taken from you, and that warrant gets signed.  (Where are your arguments before that judge? Good question.)

Next,  the blood is taken by a nurse and then it gets taken over to the medical examiner so the blood alcohol content can be determined in the examiner’s crime lab.  If the BAC meets or exceeds the legal limit for intoxication, then you’re arrested for Driving While Intoxicated.

However, this should not be the whole story.  Consider these unknowns:

• We are not aware of how many times those warrants are requested and not signed.  (If there’s ever a refusal.)
• No reports on how often the tests come back with results that show the BAC has not met the legal limits.  (Think about that one.)
• No reports on whether or not certain cops are doing this more often than others.  (These campaigns give cops lots of power, don’t they?)
• No reports on whether or not certain classes of folk are getting pulled over more often than others. (If you are African American, are you more likely to be stopped?)

The federal constitution protects against unreasonable search and seizure.  It also protects our due process rights.  Police powers must be monitored and curtailed in order for freedom to be maintained.

For more information, consider:

Ten Things To Know In Case Your Car Is Pulled Over in Texas

What Is Legal Intoxication in Texas

Defenses to Blood Samples (Contamination, Legal Blood vs Medical Blood,  Impact of Medications, etc.)

Two New Texas Jails Investigations This Week

In Houston, Robert Gomez was arrested and jailed in Houston’s central jail on Riesner Street last Saturday night on a charge of public intoxication and sadly, took his own life by using his tee shirt as a means of hanging himself in his jail cell.  Gomez was allegedly “combative” with the cops on the ride downtown, so when he got there, the jailers put him in an individual cell.

Gomez had been checked out by jail medical staff before being put into his cell, and according to witnesses (which included prisoners in neighboring cells) Mr. Gomez tied his tee-shirts together and hung himself from the bars of his cell.

Right now, an autopsy has been ordered and the incident is being investigated by both the Homicide and Internal Affairs Divisions of the Houston Police Department.

Meanwhile, over in San Antonio, jailers gave Rene Palomo a “get out of jail free” card this week, after he had been sitting in the Bexar County Jail since March 2011, facing burglary and robbery charges.  Last Friday, Palomo was sentenced – he got 6 years on the burglary, and the robbery charge was dropped.  After being sentenced over at the courthouse, Palomo returned to the jail and within hours, he was given his walking papers.

By Friday night, Mr. Palomo was free.  No news as to when and how the jailers figured out that Mr. Palomo had been sentenced to six years incarceration, but someone did. Saturday afternoon, the cops pulled up to Palomo’s home there in San Antonio, and took him back to jail.   An investigation has begun into how Palomo got released by the Bexar County Jail.

Oh, and Texas prosecutors this week? Indictment Deadline Missed, Murder Suspect Must Be Freed

Well, over in Fort Bend County,  the District Attorney’s Office did not get an indictment by the ninety (90) day deadline set under Texas law in a case where a teenaged boy was murdered.  The suspect was arrested, name of Richard Mendoza, and he went to jail.  However, he had to be released because the deadline was missed. By the prosecutor.

Seems that the murder was unsolved until August of this year, when the victim’s bones were found in a field and DNA testing was performed.  As a result of the DNA testing, Mendoza was arrested and jailed.  Now, as a result of the prosecutor missing a basic deadline, Mendoza has been released.

The truth is that prosecutorial misconduct is a big, big problem.

It’s a huge problem here in Texas, and as we’ve learned this week in the Ray Gricar / Penn State scandal, it’s also a big problem in other parts of the country. (To read my post on Gricar’s failure to prosecute, go here).

This week, the Dallas Morning News published an editorial that we should all read and consider. Entitled “Editorial: How to curb rogue prosecutors,” four recent examples are given, where prosecutors closed their eyes and ears to justice and instead, messed with evidence — evidence that has now cleared convicted individuals, evidence that the state held even though that evidence might help the defense.

The four examples?

Michael Morton (read our earlier post here on Morton’s case).  Here, the district attorney held back evidence that pointed to another person as being the one who killed Morton’s wife as Morton was convicted and served 25 years in a Texas prison before legal battles succeeded in getting his release.

Anthony Graves, who served 18 years in a Texas prison – part of that on Texas Death Row – after the prosecutor jerked around with witness testimony to get Graves convicted for killing 6 people.  Graves was exonerated and freed last fall. This summer, Graves finally won his fight for restitution and received $1.4 million from the State of Texas.

Dale Lincoln Duke spent 14 years in a Texas prison after the prosecutor saw fit to hold back evidence which supported Duke’s defense against child abuse charges.  On November 4, 2011, a Dallas County Judge declared Duke innocent of all charges and Duke is eligible for $2 million in restitution.

Chelsea Richardson served time on Texas Death Row only to get the death penalty taken off the table (she’s still going to serve a life sentence) when appellate fights revealed that the prosecution did not share mitigating evidence with the defense that another defendant was the mastermind in the plot to kill the parents of Richardson’s boyfriend.

Think this is all?  Not by a long shot.

Consider the pending case of Hank Skinner (read the details in our earlier post).  Skinner is fighting for DNA testing of evidence that the prosecutors never saw fit to test which Skinner maintains will prove his innocence.  Skinner was set to be executed by the State of Texas last week, but Skinner was granted another stay — to argue for DNA testing, it still hasn’t happened yet.

Delma Banks had to go all the way to the United States Supreme Court before it was confirmed that prosecutors had suppressed evidence in her case (along with lots of other bad things) and she was freed.  Read about her case here.

Former Texas District Attorney  Stephanie McFarland got caught withholding evidence TWICE before things changed (read the details here).

Yolanda Madden spent four years in jail before it was confirmed that the prosecutor withheld evidence in her case: seems that it took a federal judge to grant Madden’s freedom.  Read the details here.

This isn’t an exhaustive list by any means.  However, it does serve to demonstrate that district attorneys need to be viewed in a different light today – by criminal defense attorneys, by judges, by juries, by the public.

Take the time to count the years that people listed above wrongfully spent in jail, think about if that was your loved one:  things must change, and until they do, prosecutors should not be assumed to be working solely in the pursuit of justice.  Because all too often, they’re not.

HAVE YOU SEEN THIS MAN?

Right now, this Pennsylvania DA is talked about like he’s dead, maybe a good guy who got assassinated; assistant football coach Mike McQueary still has a job at Penn State; Penn State Head Football Coach Joe Paterno (“JoPa”) just got fired; and former defense coordinator Jerry Sandusky is facing child sex-abuse charges.

Tomorrow, lots of people will be watching what all this will mean when the Penn State Nittany Lions go up against Nebraska.  It’s going to be televised starting at noon EST on ESPN.

Seems there’s a move to get everyone to wear white to the game as a show of support for JoPa, who only lost his job after a growing public outcry.  How many will be wearing white at the game?  You gotta wonder.

Mike McQueary Put on Admin Leave Today for His Safety

Today, we know that Penn State assistant coach Mike McQueary has been placed on administrative leave – not for wrongdoing, though, but for his safety.  Seems McQuery’s getting death threats.  Shocking, right?  Shocking that some folk may be very, very angry that the guy who witnessed a boy being sexually abused in a shower and then ran home to daddy rather than help that kid should be allowed to be on the field tomorrow.

What is all this about child abuse?  Read the Grand Jury testimony here. McQueary is the graduate student testifying regarding Victim 2.  We’ll also be very interested in Victim 6 testimony, but that’s in a bit.

Penn State University Apparently Still Doesn’t Get It – Or Do They?

Safety for McQueary.  Couple this with today’s latest news release from the Penn State powers that be, and you gotta wonder when these guys are going to snap.  Kids were hurt – and today’s statement from the Penn State Board of Trustees?  Get this, from their release:

We call upon all members of the University community to rededicate ourselves to ensuring the integrity of our institution.

Wo Nellie.  Their integrity?  Penn State’s reputation?  Really????

Here’s My Opinion On Ray Gricar- the Criminal Defense Lawyer Perspective

I want to explain the implications of what I’ve been reading about Pennsylvania prosecutor Ray Gricar — the district attorney that has been missing since 2005.  Here’s what I’m thinking, from my perspective as a Board Certified criminal defense attorney practicing criminal law for many years in Texas.

1.  Ray Gricar is no hero.

Ray Gricar was present for that Grand Jury and he’s hearing all that testimony.  Go read the Victim 6 testimony.  In it, Sandusky gave a confession, a CONFESSION.

Sandusky states to Victim 6′s mother — as overheard by State College Police Department Detective Ralph Ralston and University Police Detective Ronald Shreffler — that his genitals “maybe” touched the kid’s naked body as he, also naked, hugged the boy in the shower.  Sandusky to the mother: “I understand.  I was wrong.  I wish I could get forgiveness.  I know I won’t get it from you.  I wish I could die.”

Jerry Sandusky knew what he had done to those boys was wrong.  He said so.  This testimony is absolute proof of guilt.  Any wet behind the ears DA could have gotten a conviction with this evidence.

Ray Gricar wasn’t a newbie prosecutor.  Ray Gricar had this testimony, along with everything else you can read in that Grand Jury transcript, and he didn’t file a thing.

All this jabber about Gricar being his own man and going after justice, not being political: that is a bunch of hooey.  Read the six victim transcript. It’s blatantly obvious Gricar is no hero here.

2.  Ray Gricar Intentionally Didn’t Pursue This Prosecution

Media reports have DA Ray Gricar involved in the Sandusky child abuse investigation with Gricar having Jerry Sandusky setup by police in one victim’s house, where he spoke with the boy’s mother while the cops listened to the conversation.   As reported to the Grand Jury, Jerry Sandusky admitted in the presence of a police officer that he, in fact, showered with the child victim, which would corroborate the sexual abuse allegation. He also admitted that what he did was wrong.

So, cops have the evidence and they take it back to the DA.  Think about Law and Order on TV: the cop part of the show is done, and now the story flips to the attorney part.

Well, here District Attorney Ray Gricar declined to prosecute Penn State’s Jerry Sandusky for a lack of evidence. Gricar is telling people that he doesn’t have enough to go forward.

Look, I’m an experienced criminal defense attorney: usually having a prosecutor say words like this is music to my ears.  Not here.  This is very, very strange based on my experience. Read that transcript again: Gricar doesn’t have enough evidence?  Bull.

3.  Gricar Disappears in 2005 – So Where is He?

Next thing you know, District Attorney Ray Gricar has disappeared from the face of the earth. No body has ever been found.  From the NCAA site, we know that his car was found abandoned 50 miles away from his home; his laptop, wallet, and keys were missing; and there was a search on the home computer, “how to wreck a hard drive.”

His personal computer – a laptop that Gricar was supposed to return to the District Attorney’s Office as he was about to retire – was found in a local river, but its hard drive was long gone.  Guts of that laptop had been apparently removed.

In my opinion, it seems like Gricar deep-sixed the sex investigation to protect Penn State, and has since disappeared. But that doesn’t mean he’s dead.

FBI Reports Ray Gricar is Missing, Not Dead

If you visit the Federal Bureau of Investigation site, you will find what the federal government thinks about this case.  Pennsylvania district attorney Ray Gricar is listed as MISSING.  He’s known to have not one but two alias:  Ray Gray and Ray Lange.

Ray Gricar even has his own Wanted poster (pdf downloadable here).

4.  Meanwhile, Police Close the Case on Gricar – After Checking With Psychics

Now, what about the local police up near Penn State?  What have they done to find Ray Gricar?  Well, we know one thing:  they’ve checked leads given to them by psychics and shockingly, that didn’t get them anywhere.

Watch this YouTube video, complete with spooky psychics and law enforcement interviews on a case gone cold.

Apparently, this was enough for the local powers that be:  a local county judge declared Ray Gricar to be presumed dead in July 2011 at the request of his daughter.  (The FBI Missing Persons list remains current.)

5.  In My Opinion, Ray Gricar Is Alive and Well and We All Need to “Amber Alert” Him

The FBI has Gricar as missing.  The New York Times is reporting on how lots of other folk think he’s still alive and kicking.  I do, too.

I think we all need to be on the lookout for Ray Gricar or Ray Lange or Ray Gray … because this is the worst case of prosecutorial misconduct I’ve seen.  Justice served?  The injustice of this entire Penn State scandal angers and sickens me, and Ray Gricar’s job was to fight for those boys.  From what we have as facts right now, we know he didn’t do it.

Read the November 7, 2011 Order and Opinion of the Texas Court of Criminal Appeals in the Hank Skinner case online here.

However, as Hank Skinner’s story continues to be followed by the international media there is a new slant on the story that is gaining lots of ground:  the actions and attitudes of the Texas prosecutors in the Hank Skinner case.

This is especially interesting, given the recent reporting on prosecutorial misconduct in the Michael Morton case. It was only a few weeks ago that the Texas Court of Criminal Appeals issued its opinion in Morton’s case, freeing Michael Morton as an innocent man wrongfully convicted of his wife’s murder after serving many, many years on Texas Death Row.

DNA evidence freed Morton — evidence that the Texas prosecutors in that case didn’t want to pursue, didn’t want to use, didn’t want to be considered on appeal. Hank Skinner is fighting a similar fight to Morton’s quest for justice; Skinner’s case, however, appears to be even stronger in its own way than Morton’s arguments.

That’s because in Hank Skinner’s case, a Texas prosecutor (Gray County District Attorney John Mann) did have crime scene evidence tested for DNA only to find that:

• Hank Skinner was at the crime scene (Skinner doesn’t dispute he was there, just that he was too intoxicated to do anything)
• Hair from an unknown person was found in one victim’s hand (DNA shows it’s not Hank Skinner’s hair)
• Blood on a cassette recorder at the scene is from an unknown person (not the victims nor Hank Skinner)
• Blood on gauze found on the sidewalk in a blood trail, also from an unknown person (not the victims nor Hank Skinner)

After the Gray County District Attorney got this DNA evidence back from his crime lab, what did he do?  He stopped testing evidence.  That’s right.

Which means the Texas prosecutor did not test:

• two knives found at the scene with blood on them, known to have been used in the murders
• vaginal swabs taken from one victim, found with her pants halfway off her body
• a windbreaker found at the crime scene within 24 inches of a victim’s body, covered in blood and sweat – a jacket known to be similar to one worn by this victim’s uncle — who had been stalking her shortly before the murders

It gets worse.  After that District Attorney lost re-election, the new District Attorney reviewed the crime reports on the DNA tests that had been done and told Skinner’s attorneys about them — but coupled that with his position that there would be no more DNA testing without the court forcing the prosecution to do so.

That’s right:  he knew about the windbreaker, the knives, and the swab — and he refused to test them.

So what’s with the prosecutors in the State of Texas?

Why would a Texas district attorney do this, aren’t they supposed to be representing the State of Texas in the pursuit of justice?  Good question.

Right now, we’ve got law school professors giving their opinions on why these prosecutors would do stuff like this to CNN and we’ve got leaders of the Innocence Project giving their take on things in the media, like Chicago’s David Protess at the Huffington Post.

Lots of talk and discussion over something that doesn’t seem that hard to see:  Texas prosecutors look to be more interested in victory in the courtroom than in justice being served.  Not big news to criminal defense bar in Texas, but it seems to be shocking to most of the American Public.

Where’s Shelby County?  It’s near the Texas – Louisiana border (you may recognize the area as Center, Texas), closer as the crow flies to Shreveport than Dallas, and as Shelby County District Attorney, Linda Kaye Russell is in charge of prosecuting all crimes within its jurisdictional limits.

Not exactly a place that you would think would be a hot bed of drug crimes, right?  Put the word “Texas” with money laundering and drug trafficking and most people think the border of Texas with Mexico, not Texas with the Bayou State.

Well, surprise.

According to this new, hot story from the AP, the Shelby County District Attorney was responsible for a jurisdiction with established drug running campaigns  — a veritable hot bed of drug-related crime.

Instead of fiercing fighting against all this criminal activity, according the Associated Press, Ms. Russell was allegedly making deals with the evildoers.  Money deals.

The story goes that the Texas DA was trading cash for letting them go or offering cushy sentences, profiting by close to a million bucks (reports are $800,000+) within a twelve month period.

August 2010: Russell Took the Fifth to Questions About Highway Piracy

Interestingly, search around for DA Russell and you’ll find that suspicions of her involvement with “highway piracy” have been around for awhile.  Over a year ago, there was a news story out of Beaumont’s local ABC affiliate that Shelby County DA Lynda K. Russell was deposed in a civil lawsuit back in August 2010 and DA Russell chose to assert the rights accorded her by the Fifth Amendment of the United States Constitution for many, many of the questions posed to her during the deposition.

That’s right:  DA Russell took the Fifth in the deposition.  In fact, she took the Fifth to 100s of questions asked of her.  Hundreds.  So many, that one attorney present during the questioning called the question-and-answer session “mind-numbing.”

So, looks like a civil lawsuit brought by some folk who got pulled over long ago in Shelby County, Texas, has turned into a big criminal investigation — and now, we’re all going to learn a lot more about the activities of Linda Kaye Russell and her Office of the District Attorney of Shelby County, Texas.  Stay tuned.

Read the full text of the CCA’s opinion, hot off the presses, here.

For background on the travesty of justice involved in the conviction of Michael Morton, read our August 2011 post “Innocence Project Finds Another Innocent Man Convicted of Murder in Texas but Loses Fight to Boot Prosecutor for Bias.” where we have been monitoring the efforts to remove the Williamson County District Attorney from the case.

DNA Tests Prove Michael Morton Did Not Kill His Wife

In its opinion, the Texas Court of Criminal Appeals finds as a fact that Morton is innocent, accepting the DNA testing into its deliberations which had shown that another individual, not Morton, committed the crime.  Morton’s conviction has been vacated.

What Did the Prosecutor Hide?

Investigations have been ongoing into the actions (or lack thereof) by the prosecutor in this case because there is reason to believe that evidence which would prove that Morton was innocent was withheld by the district attorney’s office of Williamson County.

The evidence withheld includes: (1) the eyewitness account of Morton’s young son, who said that the killer was not his father; (2) the victim’s Visa card found later at a store in San Antonio; (3) a cashed check, made out to the victim, with an apparent forged endorsement on the back where it was cashed almost two weeks after the homicide; and (4) the bandanna found at the crime scene with DNA evidence on it (which has been the basis of the vacated conviction).

What Happens to Michael Morton Now?  He’s Free and He’s Gonna Get Paid

Michael Morton has been walking free since October 3, 2011 (when an earlier hearing allowed his release pending today’s ruling) and now, under the laws of the State of Texas, he will be entitled to receive $80,000/year of wrongful imprisonment as well as $2,000,000 in an annuity that earns 5% interest.

And before anyone gets excited about that cash, think about it:  this man has served a huge part of his life behind bars, with most folk believing that he had killed his own wife.  Does anyone really think that this moola really fixes all that — that this man wouldn’t prefer to erase all this rather than have that cash now?  These payments don’t excuse or weaken the wrong of prosecutorial misconduct.

Judge Suzanne Wooten Is Still Officially Presiding Over Her District Court Bench While Suspended With Pay

Judge Wooten is still officially presiding over the 380th Judicial District Court of Collin County, Texas; however, she is still on suspension by the State Commission on Judicial Conduct so the Honorable Suzanne Wooten has had others covering her work on the bench while she remains at home with pay — and according to the homework done by John Pitchford of the Collin County Observer in checking public salary records, Judge Wooten has been getting $12,000 /month  since October 2010 without taking the bench once.

That’s a pretty long paid vacation, right? Meanwhile, things are getting more and more interesting as her trial was moved and moved again, and now Judge Wooten may not see a trial until sometime next year.

Judge Suzanne Wooten Faces Two More Charges – and a newly released FBI Report

The felony trial of Suzanne Wooten was set to begin on August 20th in front of a visiting judge from the Tyler bench, Judge Kerry Russell; however, that trial date fizzled and it’s predicted there won’t be another solid trial date until after the new year.  Why?

The indictment has been amended — it’s grown with 2 additional charges — and there’s new evidence to deal with:  on the eve of this August trial, the special prosecutors (two Texas Assistant Attorneys General, the special prosecutors that John Roach had asked be appointed to the case, Harry White and Brian Chandler) have finally introduced a report by the Federal Bureau of Investigation (FBI).

The FBI has prepared a preliminary 48-page report concerning Judge Wooten’s activities and it was conducted because Judge Wooten complained to the FBI about political shenanigans back in April 2010.  (As described in our earlier post, Wooten is arguing witch hunt, pointing to John Roach’s four different grand jury proceedings against her since her record-breaking election as a Republican back in 2008.)

According to media reports, Judge Wooten’s attorney has charged that the FBI’s report refers to Wooten as ”the victim,” and names members of the Collin County District Attorney’s Office as FBI investigation targets, including the special prosecutors appointed on John Roach’s request, Assistant AGs Harry White and Brian Chandler.  (No wonder some question why that report took so long to get turned over in discovery.)

District Attorney John Roach Has Been Replaced – And His Replacement Wants to Toss This Hot Potato To A NEW Prosecutor Pronto

Meanwhile, over at the District Attorney’s office, things have changed.  John Roach isn’t the Top Dog anymore.  Now, Greg Willis is the District Attorney for Collin County, Texas  — and yesterday, this new District Attorney filed a motion that is making the news: he’s requesting the criminal court judge remove the special prosecutors that John Roach had asked be appointed to the case, Assistant Texas Attorneys General Harry White and Brian Chandler, and that Judge Wooten’s case be prosecuted by someone totally new.

A copy of District Attorney Greg Willis’ motion can be read in its entirety here. From his motion:

“The citizens of Collin County deserve to have an impartial and disinterested attorney appointed by this Court to assess and determine how this prosecution should move forward. To that end, the undersigned District Attorney, also requests permission to recuse himself and requests that this Court appoint an impartial and disinterested attorney pro tem. …

“This matter has been mired in politics, speculation, and allegations of conflicts of interest since its inception. Regardless of the existence of actual conflicts of interest, this prosecution is cloaked in the appearance of impropriety and should not continue on its present course.”

“A prosecutor should be independent, unbiased, without conflicts of interest, and not witnesses to any of the concerns presented to the grand jury.”

“In view of his decision to voluntarily recuse himself, the District Attorney further moves the court to appoint an impartial and disinterested attorney pro tem pursuant Texas Code of Criminal Procedure article 2.07. …

“The citizens of Collin County must trust in the integrity of countywide elections, and also in the integrity of those who investigate and prosecute allegations of public corruption in the same manner. The proximity of the Texas Attorney General ‘s Office and that of the former Collin County Criminal District Attorney to the allegations which are at the heart of the indictment, and to the related federal investigations into the same, have placed that trust in jeopardy.”

Last fall, we wrote this was a High Noon face-off between John Roach and Suzanne Wooten and that things would get a lot bigger before the end of it all.  Key to our prediction, the fact that a big bunch of criminal defense attorneys gave Judge Wooten a standing ovation when she took the bench:  again, criminal defense attorneys practicing daily in a local courthouse usually know what’s going down and that act of unity tells us all something.

It’s still going to get bigger.  We’ll keep you posted.