The Philosophy of Convict at any Cost Continues in Harris County

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Dr. Patricia Moore is the former associate medical examiner in Harris County. The Houston Chronicle (Sept. 14, 2009) reported that the doctor has been “repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999” in child death cases.


During Dr. Moore’s tenure with the Harris County Medical Examiner’s Office, she conducted a number of autopsies in children’s deaths whose results have been challenged as not being medically accurate. One of those autopsies involved the 1998 death of a 4-month-old baby, who died in the care of a babysitter named Cynthia Cash, and led the Harris County District Attorney’s Office to file criminal charges against Cash.


Ken Cash, the babysitter’s husband, recently told the Chronicle that “they [District Attorney’s office] railroaded her in that autopsy report. She is innocent.”


Ken Cash’s claim of innocence for his wife recently gained significant support after it was recently discovered that the Harris County Medical Examiner’s office in February 2008 revised the autopsy that served as the genesis of the criminal charge filed against Cynthia Cash and the subsequent prison sentence she received.


According to the Chronicle, the new autopsy report changed the cause of death from “homicide” to “undetermined” and also added that it found no evidence of trauma.  This assertion was given credence by Dr. Richard M. Hirshberg, a neurologist expert who reviewed the 2008 revised autopsy report. Hirshberg, who testified at Cash’s trial as a defense expert witness that he had found none of what the Chronicle called “classic signs of  shaken baby syndrome,” told the newspaper for its September 14 article: “It’s my firm belief now as it was during the Feb. 5, 1999, trial that [Cynthia Cash] is innocent.”

Cash’s claim of “actual innocence” is also supported by the fact that in at least three other cases the Harris County Medical Examiner’s Office had to revise autopsies in children’s deaths which Dr. Moore had classified as “homicides.”  The September 14 Chronicle article was written by Lise Olsen and the reporter found that “two women have been cleared in other cases—including Brandy Briggs, who was jailed at 19 after rushing her baby to the hospital and who spent several years in a prison isolation cell before being freed in 2005.”


Lise Olsen’s review of Dr. Moore’s previous autopsies in child death cases found that in one case prosecutors were forced to dismiss criminal charges after Moore’s autopsy report listing a child’s cause of death as homicide was challenged and the report subsequently changed to list the cause of death as “undetermined.” In a 1997 case involving a child death, Trenda Kemmerer was convicted and remains in prison even though “the child’s autopsy was changed and Moore reprimanded for failing to show objectivity in the case,” Olsen reported.


While Dr. Moore left the Harris County Medical Examiner’s Office in 2002, the Chronicle reported that she has continued to work for the Southeast Texas Forensic Center which services six counties from its Conroe-based office. One of those counties is Montgomery County where in 2007 the newspaper discovered that Dr. Moore was forced to change yet another autopsy report in a child’s death.


This year alone we have posted a series of articles dealing with the dangers of “false forensics” as being comparable to junk science; child sexual assault “expert witnesses” who function as hired guns for the Harris County District Attorney’s Office; and the devastating damage done to individuals and the state’s criminal justice system because of wrongful convictions. All of these related issues are extremely disturbing and gut-wrenching for Harris County criminal defense attorneys who have had to wage an unpopular and unforgiving war against a prosecutorial “convict at any costs” philosophy of the Harris County District Attorney’s office which has reigned supreme for the past three decades.


And it seems as though this philosophy will continue to prevail under the so-called “reform” administration of current District Attorney Pat Lykos. In response to Ken Cash’s plea for “justice” for his imprisoned wife—who the Chronicle reported had to sell the couple’s home to pay for his wife’s legal fees while continuing to raise their young son—Assistant District Attorney Lynn Hardaway nonetheless announced that the District Attorney’s office would oppose Cynthia Cash’s “actual innocence” appeal filed by attorney Charles Portz who secured the freedom of Brandy Briggs.


“The Court of Criminal Appeals held that a claim of actual innocence based upon newly-discovered evidence should not be overturned lightly and the burden on the defendant who has had error-free proceedings is exceedingly heavy,” wrote the assistant D.A. assigned to the case in opposition to Cash’s actual innocence appeal.


That’s legal blasphemy! What the District Attorney’s Office is saying—and we concede that its position is based on a Texas Court of Criminal Appeals precedent—is that it is perfectly okay to maintain the conviction of an innocent person so long as she/he had an “error-free” trial. The Fifth Circuit Court of Appeals has taken the same constitutional position by saying that the issue of “actual innocence” is not subject to review in a federal writ of habeas corpus proceeding. While the U.S.


Supreme Court upheld the Fifth Circuit’s position, the nation’s high court has not directly addressed the “actual innocence” issue as an independent basis for relief. The Court, however, on August 17, 2009 gave some indication that it is now prepared to decide whether “actual innocence” is a basis for federal habeas review when it remanded the Troy Davis case, a highly publicized Georgia death penalty case, for a hearing on the condemned inmate’s claim of actual innocence. In an unusual written response to Justice Scalia’s dissent in the case, Justices Stevens, with Justices Ginsburg and Breyer concurring, pointed out: “… The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”


Justice Stevens went directly to the heart of the actual innocence issue. He pointed out that Justice Scalia “would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error. Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this. But imagine a prisoner in Davis’s situation, who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. This Court correctly refuses to endorse such reasoning.”


The Harris County District Attorney’s Office has taken the same hard-line and now discredited position in the Cynthia Cash case that was taken by Justice Scalia in the Troy Davis dissent: that actual innocence, standing alone, is not a constitutional basis for release so long as the State gave the defendant an “error-free” trial. The District Attorney’s Office is aware of the recent constitutional shift on the actual innocence issue reflected in the Troy Davis ruling. It is also aware that the very basis for its original decision to bring criminal charges in the Cynthia Cash case—the autopsy report prepared Dr. Patricia Moore—has since been revised and discredited. Therefore, it can reasonably be concluded that the Lykos administration is just as determined to maintain the “convict at any costs” prosecutorial philosophy of her predecessors (Charles Rosenthal and Johnny Holmes).


The District Attorney’s office, through spokesperson Hardaway, attempted to justify its opposition to Cynthia Cash’s actual innocence claim by saying that other “evidence presented at trial from doctors who thought [the baby] was a victim of shaken baby syndrome.” If District Attorney’s office is so confident in its case, why it join with attorney Charles Portz in a request for a Troy Davis style evidentiary hearing endorsed by the U.S. Supreme Court just last month.

Supporting a Troy Davis type hearing would have been consistent with a number of actions taken by the Texas Legislature in this year’s session. The Texas Criminal Defense Lawyers Association (TCDLA) recently released a summary of these actions and will soon publish them in an upcoming edition of TCDLA’s Voice of the Defense. The TCDLA summary includes the following significant actions taken relative to the issue of “innocence”:


  • HB 498Relating to the creation of a commission to investigate and prevent wrongful convictions. This bill establishes an Innocence Commission with a Timothy Cole advisory panel on wrongful convictions to assist the Task Force on Indigent Defense in conducting a study and preparing a report regarding the prevention of wrongful convictions.
  • HB 1736Relating to the compensation of persons wrongfully imprisoned. This bill, known as the Tim Cole Act, increases payments and services to wrongfully imprisoned persons. It allows compensation to go to a person’s heirs in lump-sum if the person received a posthumous pardon for being wrongfully imprisoned. Further, it allows a lump-sum compensation of $80,000 per each year of wrongful imprisonment and $25,000 per each year served on parole or as a registered sex offender. Further, it allows for payment of higher education tuition and fees for a person wrongfully imprisoned. Further, it allows for reentry services for wrongfully convicted persons. Further, it authorizes services for wrongfully imprisoned persons including medical and dental care.
  • HB 2058Relating to the standards for attorneys representing indigent defendants in capital cases. This bill requires a trial attorney appointed as lead counsel in a capital cases to have at least five years of criminal law experience. Further, it requires that an appellate attorney appointed as lead counsel in the direct appeal of a capital case to have, in addition to the five years of criminal law experience, to have: a) authored a significant number of appellate briefs, including appellate briefs in homicide cases and other cases involving an offense punishable as a capital felony, felony of first degree, or other enumerated offenses; b) have trial or appellate experience in the use of and challenges to mental health or forensic expert witnesses and the use of mitigating evidence at the penalty phase of a death penalty trial; and c) have participated in continuing legal education courses or other training relating to criminal defense in appealing death penalty cases.
  • SB 1091Relating to the establishment of the capital writs committee and the office of capital writs. Establishes a capital writs committee and office of capital writs to handle writs in death penalty cases.
  • SB 1681Relating to requiring the corroboration of certain testimony to support a criminal conviction. Requires corroboration before a person can be convicted on the testimony of a jailhouse informant. Further, provides that corroboration is not sufficient if it only shows that the offense was committed.
  • HB 2002Relating to a right of a close relative to seek expunction of arrest records and files on behalf of a deceased person. Authorizes a close relative to file a petition for expunction for a deceased person.


The Harris County District Attorney’s Office has seen six criminal defendants it wrongfully convicted with either false or fabricated forensic evidence, perjured testimony or mistaken identification ordered released by the courts since 2004. These six Harris County wrongful convictions, and scores of others statewide, influenced the Texas Legislature to take the aforementioned drastic steps to repair a seriously flawed prosecutorial system in both Harris County and the State of Texas.

The Cynthia Cash case offered the Lykos administration a real opportunity to erase some of the horrific shame of the Rosenthal/Holmes administrations. It elected not to do so. Instead, the District Attorney’s Office chose to stand firm with the shameful “convict at any costs” prosecutorial philosophy she inherited, notwithstanding the recent repudiations of that philosophy by both the Texas Legislature and the U.S. Supreme Court.



11/ [Troy Davis Opinion]
12/ Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002) {actual innocence standards]
13/ Herrera v. Collins, 954 F.2d  1029 (5th Cir. 1992) [“actual innocence” claim not ground for federal habeas relief], affirmed by U.S. Supreme Court in Herrera v. Collins, 506 U.S. 390 (1993) [left open possibility that in a capital case “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of the defendant unconstitutional” and thereby making actual innocence issue subject to federal habeas review]
15/ Kristin Etter, Gonzalez and Place,
16/ Tex. Civil Practice and Remedies Code, § 103.001 [HB 1736]
17/ Tex. Civil Practice and Remedies Code, § 103.052 [HB 1736]
18/ Tex. Civil Practice and Remedies Code, § 103.054 [HB 1736]
19/ Tex. Government Code, § 501.091 [HB 1736]
20/ Tex. Health and Safety Code, § 614,021 [HB 1736]
21/ Tex. Code of Crim. Procedure, § 26.052(d)(2) [HB 2058]
22/ Tex. Code of Crim. Procedure, § 26.052(2)(3) [HB 2058]
23/ Tex. Government Code, Chapter 78 to Subtitle F, Title 2 [SB 1091]
24/ Tex. Code of Crim. Procedure, Adds § 38.075 [SB 1681]
25/ Tex. Code of Crim. Procedure, Adds § 55.011 [SB 2002]

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair