Hannah Overton Update: DA Dismisses Charges

I’ve followed the Hannah Overton case here in recent years.  In a horrific miscarriage of justice, she was convicted of capital murder in the salt poisoning death of Andrew Burd, a profoundly troubled boy with eating disorders. 

The conviction was overturned last year, but Nueces County DA Mark Skurka proceeded to push for another capital murder conviction.  Now he has conceded continuing with that is not a wise course (to put it nicely).  Late yesterday came word he has dismissed charges against her.

The dismissal is without prejudice, meaning charges could be refiled should new evidence arise.  But the practical effect is that this is finally over.  Thanks be to God!

Hannah Overton Will Be Home for Christmas

Readers may remember that I’ve followed the Hannah Overton case for some time.  Her capital murder conviction was rightly overturned in September.  But her release did not come until yesterday’s bond hearing.

The three month delay in her release is hard to excuse.  But part of the delay was her defense team’s wise and successful effort to get Judge Jose Longoria recused.  He presided over the 2007 trial and has demonstrated he cannot be trusted to be a fair judge of this case.

One result of said recusal is the success of yesterday’s bond hearing.  Bond was set at a reasonable $50,000 with no onerous conditions.  So, finally, Hannah Overton is home with her family after seven long years.

Nueces County DA Mark Skurka has said he intends to retry Overton for capital murder.  But a development during the bond hearing would make much a foolish task even more difficult:

Arguably the most dramatic moment of the hearing came when Hannah’s attorneys revealed that one of the state’s star witnesses at trial, Dr. Alexandre Rotta—who had treated Andrew on the night he was brought to the hospital in 2006 in a coma—had recently contacted Hannah’s defense team. Dr. Rotta told Hannah’s attorneys in an email that seven years after Hannah’s trial, her conviction still kept him up at night. This complicates matters for Nueces County District Attorney Mark Skurka, who has vowed to retry Hannah on capital murder charges. The fact that key prosecution witnesses such as Dr. Rotta— along with Dr. Edgar Cortes , another physician who examined Andrew on the night he was admitted to the hospital—now question Hannah’s conviction casts doubt on whether Skurka can win his case . . . .

Skurka would be wiser to clean up his office.  Yet another indication of the corruption of the Nueces County DA’s office has come out.  Eric Hillman is suing said office.  The former prosecutor claims he was fired for following the law:

Eric Hillman prosecuted drunk driving cases, but, when he uncovered a witness who had the potential to help someone he was prosecuting, he claims his bosses told him not to share that information with the other side.

 He did and the lawsuit he filed Monday claims it cost him his job.

"It is unlawful to fire or terminate an employee because they refuse to commit a criminal act and that's exactly what happened here," said Hillman's attorney, Amie Pratt with the Gale Law Group.

Prosecutors are required by law to share any evidence that may help the defense.  This legal requirement was also alleged to have been violated in the 2007 Hannah Overton trial. 

Was that violation inadvertent and isolated?  I think not.  And I am not alone.

[Hillman’s] attorneys say this case could point to bigger problems in the pursuit of justice in Nueces County.

"Nueces County seems to be in favor of withholding evidence from defense counsel which is a huge problem," Pratt said.

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.

BREAKING: Hannah Overton Murder Conviction OVERTURNED

I may post more later, but I just got word that the murder conviction of Hannah Overton has been overturned by the Texas Court of Criminal Appeals.  The court found for her claim of ineffective counsel.

This is a great day.

Here are some previous posts on this case.

Hannah Overton Hearing Before Texas Court of Criminal Appeals

Back in 2012, I mentioned the Hannah Overton case and the prosecutorial misconduct perpetrated against her.  The Texas Court of Criminal Appeals, the highest Texas criminal appeals court, has paid an unusual amount of attention to this case and held oral arguments on it last week.

The court has long had a reputation for not being very sympathetic to those seeking to overturn convictions.  The Presiding Judge Sharron Keller is, rightly or wrongly, rather infamous in that regard.  But the attention they have given to this case and signs of the high court’s unease with the number of wrongful convictions in Texas are good signs.

Pamela Colloff, who has followed the Overton case closely for years, has written an update which summarizes the hearing.

Please pray for Hannah Overton and her family and for a just ruling.

Texas Chainsaw Prosecution Massacre

At the risk of sounding like a bleedin’ heart lib’rul, I cannot help but notice a rash of news from Texas that does not reflect well on prosecutors.

First, another two Dallas County men have been cleared of previous convictions thanks to advances in DNA evidence.  That brings to 32 the number of men so cleared of past Dallas County convictions.

Now it is a good thing DNA science has advanced to make more clear the guilt or innocence of many.  And the current Dallas Co. District Attorney Craig Watkins is to be commended for being proactive in reversing past wrongful convictions which did not happen under his watch.  May his tribe increase.  And it is good that under Texas law, if you have a conviction reversed and receive a declaration of “actual innocence,” you are entitled to $80,000 for each year of wrongful imprisonment.

BUT if so many men in one county have had convictions reversed, it makes one wonder just how many innocent people are rotting in prison.

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Just Northeast of Dallas, in Denton County, one judge was so enraged by two prosecutors withholding evidence from the defense, he has banned the two from his court, adding that they lack “the innate intellect of a fifth-grader”.  Read more to get an idea of the displeasure of Judge Burgess and the cause thereof.

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Down in South Texas in Nueces County last week was the sensational hearing on the infamous 2007 capital murder conviction of Hannah Overton for allegedly poisoning her foster child . . . with salt. 

Yes, the conviction was absurd and aided by questionable and confusing instructions to the jury by Judge Longoria.  Some jurors polled afterward indicated they voted to convict because of supposed slowness of Overton to get medical attention (But she wasn’t slow, and testimony last week indicated greater speed probably would not have saved the boy anyway.), not because they thought she intentionally and with malice and aforethought killed him.  But by definition you have to have that intent to convict for capital murder.

With evidence of prosecutorial misconduct arising since, an appeals court ordered a hearing in Longoria’s court.  In it, the 2007 prosecutor Sandra Eastwood (since fired, thank God) did not come off well.  Testifying reluctantly under a subpoena, many of her answers were of an “I don’t remember” variety.  And a member of her 2007 prosecution team, Anna Jimenez, frankly testified that she was so troubled by Eastwood’s ethics that she complained to the District Attorney.  Then there was this:

According to Jimenez, Eastwood told her, “I will do anything to win this case.” Jimenez also recalled Eastwood sending someone to spy on Hannah’s fellow church members in order to determine what sort of defense strategy would likely be pursued at trial. (Eastwood denied Jimenez’s allegations.)

“Her behavior during the entire course of this trial was so—” Jimenez said, taking a few moments to search for the right words, “—far out.”

I think that cuts to the core of the problem with Sandra Eastwood and with too many prosecutors.  They will “do anything to win” regardless of ethics, the evidence or lack thereof, and justice.  Given the choice of laying a case aside when the evidence for guilt is lacking or going for a scalp, they will go for a scalp.  And if innocent people are sent to prison . . . well defending them is neither their job nor their concern.

I wish I could say the current Nueces County D. A. is not of this ilk.  But Mark Skurka’s office is fighting the effort to overturn Overton’s conviction.

Pamela Colloff’s reporting on this case has been stellar.  Recent posts from her may be found here.  And be sure to read her excellent Texas Monthly article on Hannah Overton.

I continue to pray for real justice for Hannah Overton and all who are wrongfully imprisoned.

MORE: I forgot to mention that the similarities between the Hannah Overton case and another wrongful conviction for alleged salt poisoning are remarkable and relevant.