More on the Hannah Overton Ruling

Yesterday morning, I greatly rejoiced in the overturning of Hannah Overton’s absurd murder conviction.  Now I’ve had some time to digest it.  With the caveat that I am not a lawyer nor do I play one on TV, I find the following most interesting.

Pamela Colloff, who has done a praiseworthy job of following this story through the years, posted a good summary of the case and of the ruling yesterday evening.  If you are not familiar with this case, I would definitely start there.

I think the opinions themselves are also well worth reading.  And they are neither long nor hard to read. 

The lead opinion, to which the Texas Court of Criminal Appeals agreed by a 7-2 margin, pointedly overturns the conviction on narrow grounds as conservative appeals judges are wont to do.  Judge Lawrence Meyers writes that Overton’s Defense greatly erred in not presenting Dr. Michael Moritz, an expert on salt poisoning and pica, to testify. He contends this omission meets the tests of determining ineffective counsel, and then in effect says that’s all we need to rule.

But the conclusion is rather pointed in saying what is left unsaid:

Because we are granting relief on Applicant’s first claim of ineffective assistance of counsel, there is no need for us to address the second issue of whether the State failed to disclose exculpatory evidence. We reverse Applicant’s conviction and remand her case to the trial court for a new trial.

A very interesting concurring opinion by three of the judges just as pointedly says the unsaid.  It in effect says that the issue of ineffective counsel is enough to rule, but we are going to talk about the prosecution anyway.  In their own words:

The majority does not address applicant’s Brady claims because it grants relief based on one of her ineffective assistance of counsel claims. It is helpful, however, to place that ineffective-assistance claim within the broader context of applicant’s claims concerning the fundamental unfairness of her trial.

And they are withering in critiquing the conduct of the prosecution in the Overton trial, especially in withholding exculpatory (Brady) evidence from the Defense.  They certainly do not hold much back on the subject of lead prosecutor Sandra Eastwood:

At the habeas hearing, the lead prosecutor conceded that, during this 2007 trial, she was an alcoholic who was also taking prescription diet pills that affected her memory. She was later fired by the District Attorney (who had been the second-chair prosecutor during this trial) for unrelated ethical violations. During the habeas hearing, the prosecutor repeated seventy-two times that she did not recall or did not know the answers to questions concerning the investigation or trial of applicant. She could not remember documents that she had written during the trial and did not recognize her handwriting; she did not remember writing the e-mails that came from her e-mail address, nor receiving other e-mails at that address; she could not remember if she saw any vomit when she previewed the evidence with one of applicant’s counsel before trial, and she did not remember asking the police to have it tested.

The second-chair prosecutor (later appointed as the District Attorney by the Governor) testified that the lead prosecutor told her that “she would do anything it would take to get an advantage over the Defense,” including sending a “spy” to applicant’s church group to learn the defense strategy. The second-chair prosecutor testified that the lead prosecutor was not ethical and was “not truthful.” She said that the lead prosecutor told her that no vomit samples had been saved as evidence. She said that she was “concerned with the fact that [the lead prosecutor] was violating the Court’s orders.”

And that’s for starters.  Again, I am not a lawyer.  But I find it remarkable the three appeals judges feel it right so to call out the prosecution when that was not necessary to make the ruling in question.  It is safe to say that they were provoked by the egregious misconduct of the Nueces County D.A.’s office.

Not only that, the three question (page 2) the jury instructions issued by trial judge Jose Longoria, although they do not mention him by name.  Those instructions have also been an issue through the years.  They certainly contributed to the over-the-top verdict of guilty of capital murder.

As for the two judges who dissented, this is the last straw for me.  If they are so blind as to think Overton received a fair trial….  Given their short opinion, they hardly seem to care and hardly address the issues raised by the majority.  The Texas Court of Criminal Appeals is elected.  And I will never vote for Judges Keller (aka Sharon Killer) and Keasler again.  I counsel all Texans to do likewise when the time comes.

The ball is now in the court, if you will, of the current Nueces County District Attorney, Mark Skurka.  His options range from trying Ms. Overton for capital murder again to dismissing all charges against her.

Hannah Overton has already served seven years in prison for a crime she did not commit.  Even if she was criminally negligent in the death of Andrew Burd – and that is a big “if” not at all supported by the body of evidence – seven years is certainly more than enough to serve for that.

D.A. Mark Skurka did not do the right thing when her conviction was appealed.  He now has the opportunity to make some amends.  Mark Skurka should dismiss all charges against Hannah Overton post haste.

I am among those who will be watching his conduct closely.  Eight years of injustice from the Nueces County D. A.’s office is enough.