Prosecutorial Misconduct Continues to Haunt the Criminal Justice System
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
48 Hours Mystery aired an episode on November 24, 2012 about a Pasadena, California native named Frank O’Connell who spent 27 years in prison for a 1984 murder he did not commit. A local football star and community hero, O’Connell had lost his way in real life after football celebrity faded and left him alone. He briefly got involved in a quasi-romantic relationship with a woman named Jeanne French who was into a third marriage in 1983 and embroiled in a bitter custody dispute with her second ex-husband, Jay French, who had remarried. O’Connell had spent a brief period of time living in the house with Jeanne and her third husband before she ended their relationship and threw him out after five weeks.
On the afternoon of January 12, 1984, five months after O’Connell had moved out with Jeanne, a man driving a yellow Ford Pinto pulled into the garage area of the apartment complex where Jay French lived. The man got out of the Pinto and shot French in the back. At the time French was loading a mattress into his truck. A neighbor and friend of French, Dan Druecker, was washing his car nearby. Druecker briefly saw the shooter before ducking down behind his car. Gina French ran to aid of her 27-year-old fallen husband, and before he was taken away by emergency personnel, he reportedly told Gina that, “this had to do with Jeanne. It looks like someone she hangs around with.” No one else heard this dying declaration.
Two homicide detectives immediately developed “tunnel vision” that O’Connell was the killer. They began their investigation on the premise that O’Connell was so “in love” with Jeanne that he killed Jay to resolve the custody dispute over the couple’s six-year-old son. The detectives took a “six pack” photo array to Druecker from which he hesitantly identified O’Connell. He would later recant the identification, saying the detectives pressured him into making the false identification.
The detectives next had to tie O’Connell to the yellow Pinto. A neighbor of Jeanne’s told the detectives that he saw a yellow Pinto parked near Jeanne’s house. He made an uncertain identification of O’Connell as the person he saw driving the yellow Pinto. That was all the detectives needed: they had an eyewitness identifying O’Connell as the shooter and another witness who connected him to the yellow Pinto.
Frank O’Connell was indicted, tried by a judge, convicted and sentenced to 25 years to life imprisonment. He vehemently maintained his innocence from the very beginning. His son, Nick, was five years old at the time his father was arrested and convicted. He never believed his father would do such a thing. When he was around 15 years of age, Nick secured all the files and records in the case. He became convinced of his father’s innocence and undertook a personal crusade to prove it. Other family members, including Frank’s mother, ultimately became convinced that Frank was guilty because the State had presented so much evidence that he had to be guilty. Frank cut off all contact with his family except for Nick who never fell under the “presumed guilty” syndrome.
The father/son were ultimately able to convinced Centurion Ministries—a group dedicated to proving the innocence of inmates wrongfully convicted—to take up Frank’s cause. It was Centurion’s investigative efforts that prompted Druecker to disclose the pressure detectives had applied to get him to identify Frank. They also uncovered “handwritten notes” by the detectives that the yellow Pinto witness was not certain about his identification connecting Frank to the car. This critical “Brady material” was never disclosed to Frank’s defense counsel which would have certainly given credence to Frank’s defense that he was at a residence with four friends 30 miles away from the French shooting.
This past March a state district judge agreed that the State had withheld “Brady material,” overturned Frank’s conviction, and ordered his release on the original $75,000 bond (the State had requested a $2 million bail). The State a few weeks later informed the court it would not appeal the judge’s new trial order but reserved its right to retry the case should new evidence ever be developed linking Frank to the crime. Frank forgave his family but moved away from California to Colorado to be near Nick. He rejected the State’s offer of $1 million in compensation to preserve his right to file a $27 million dollar civil rights lawsuit.
We can only hope Frank O’Connell prevails. He never once wavered in his claim of innocence and vowed to return to his old neighborhood with head held high. He did just that, walking down the street with flowers in hand for his mother as neighbors and friends cheered him on. 27 years in prison for a crime we believe he did not commit.
And what about good ole Jeanne. In April 1985 she got custody of her son. She moved to Oregon where she lives with yet another husband. Mike Flick, one of her former husbands, recently told detectives that Jeanne had confided to him that she paid a “hitman” to kill Jay French. She has never been charged with any crime in connection with her ex-husband’s death and refuses to speak with anyone about the case.
As for Centurion, Frank O’Connell’s name has been removed from its “active case” file.
Kenneth Boyd, Jr. did not have Centurion Ministries to come to his rescue. But his story is remarkably similar to O’Connell’s: jailhouse snitches who have since recanted their false testimony, lying witnesses high on crack, and other evidence suppressed by then- Shelby County District Attorney Karren Price (such as one State witness failing a polygraph test) caused Boyd to spend 15 years in prison for a crime he did not commit. What he had was an attorney named Gena Bunn, with the Holmes and Moore law firm in Longview, Texas, who believed that a grave miscarriage of justice had been done to Boyd for an April 1997 triple murder in Shelby County.
“He was found guilty of capital murder and sentenced to life in prison despite the fact that there was no physical evidence linking him or any of his co-defendants to the murders,” Bunn told the media.
On November 14, 2012, the Texas Court of Criminal Appeals pointed to a finding by the trial court earlier this year that: “In light of the newly discovered and newly available evidence presented by [Boyd] and its probable impact on the State’s case as a whole, the trial court concludes that [Boyd] has proven by clear and convincing evidence that no reasonable juror would have voted to convict him.”
Boyd, and three co-defendants, was charged with gunning down Brian Brooks, Percy Moore and 13-year-old Christy Calhoun. Boyd always maintained his innocence. Witnesses placed him in Jacksonville, not Center, when the murders were committed. He also passed a polygraph test indicating non-involvement in the crime.
Unlike Frank O’Connell’s mother, Boyd’s mother never doubted her son’s innocence. “It was really her who basically wore them out until they appointed counsel for Kenny,” Bunn said.
The prosecutorial misconduct in this case was first unearthed by the Court of Criminal Appeals in the case of Rodney Moore, one of Boyd’s co-defendants. The appeals court threw out Moore’s conviction. While the appeals court did not agree with the trial court’s finding that Boyd had established his actual innocence “by clear and convincing evidence,” he had demonstrated sufficient evidence that prosecutorial misconduct (including suppressing evidence that another person committed the triple murder) warranted a new trial.
Current Shelby County District Attorney Kenneth Florence announced he has re-opened the triple murder case, hopefully indicating that all charges will be dropped against Boyd.
Bunn said she hopes the community will help Boyd make the transition from prison into free society. “I think for somebody who’s been in prison for 15 years for a crime that I believe he did not commit, then to come out into the free world, he’s going to have a lot challenges,” Bunn said. “I hope the community can help him.”
It is virtually impossible to calculate just how many innocent people are in the nation’s prison system because prosecutors and law enforcement officials engaged in misconduct. The Frank O’Connell and Kenneth Boyd cases are not aberrations. They are a prevalent and insidious reality in our criminal justice system.
These cases, AGAIN, emphasize the fact that it is vitally important that every defense attorney keep a keen and vigilant eye out for prosecutorial misconduct. They also continue to beg the question: What should be done to prevent prosecutorial misconduct, especially intentional conduct that sends an innocent person to prison…
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John T Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization