Reasonable Prosecutors Should Know Constitution is Implicated When Person is Deprived of Liberty by State Sponsored Seizure and Detention
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We have posted up several posts this year about prosecutorial misconduct and the tendency by the courts to tolerate, if not bless, this increasing phenomenon which is a disgrace to our criminal justice system. Well, we’re pleased to report that last month the U.S. Court of Appeals, Third Circuit, in Schneyder v. Smith, held a rogue prosecutor accountable for her misconduct.
The facts of the Schneyder case, which originated in Pennsylvania, are succinct, as outlined by the Pennsylvania Supreme Court in Commonwealth v. Overby. Michael Overby was indicted for rape, robbery, and murder of Lillian Gaines in September 1990. In January 1992 Nicole Schneyder was brought to a Philadelphia police station where she was subsequently questioned by, and gave a statement to, homicide division detectives. She informed the detectives that the day before the Gaines’ murder Overby told her he was going to rob someone. She also told the detectives that about one week after the murder Dwayne Elliott, a co-defendant of Overby, told her that he, and Issac Young, accompanied Overby to do the robbery and that Overby got upset because Gaines she gave him “a hard way to go,” so he killed her.
Based on this information, Overby was charged with first degree murder. At a preliminary, which was attended by Overby and his two co-defendants, Schneyder recanted the statement she had given to homicide detectives, saying she had told them what they wanted to hear so she could get out of the police station. Despite this recantation, prosecutors went forward with the case against all three defendants who were tried together. Schneyder was declared unavailable as a witness when she did not appear at the start of trial. Her testimony from the preliminary hearing was read to the jury.
The jury found Overby guilty of robbery and conspiracy but could not reach a verdict on the murder charge. The jury could not reach a verdict on any of the charges against Elliott. At a second trial a similar procedure was used to get Schneyder’s testimony before the jury. Overby was found guilty of first degree murder while Elliott was acquitted on the murder charge but found guilty on the robbery charge. At Overby’s punishment phase of the trial, the prosecution incorporated the statements reportedly made to Schneyder by Overby and Elliott to show the murder occurred during a robbery. The jury found no mitigating evidence and sentenced Overby to death.
The Pennsylvania Supreme Court reversed Overby’s conviction and death sentence in October 2002, saying his “confrontation rights” under the Sixth Amendment had been violated by the prosecution’s use of Schneyder’s hearsay evidence.
The Third Circuit brought out the additional facts that prior to Overby’s preliminary hearing before his first trial, the murder suspect’s family contacted and threatened Schneyder not to testify against Overby. The witness became so frightened she pulled a knife on a homicide detective when he attempted to arrest her and compel her appearance in court. She managed to avoid capture during Overby’s first two trials.
Following the Pennsylvania Supreme Court’s reversal of Overby’s convictions, prosecutors pressed for a third trial, which was scheduled for February 2, 2005, and they knew Schneyder’s “live testimony” was “absolutely necessary.” Schneyder also knew her testimony was essential against Overby so she disappeared as the trial date approached. On January 26, 2005 Assistant District Attorney Gina Smith applied to trial judge Rayford Means for a “material witness” arrest warrant permissible under Pennsylvania’ code of criminal procedure. This procedure allows for the judge to “issue process” and “set bail for any material witness” for whom there is “adequate cause for the court to conclude that the witness will fail to appear when required if not held in custody or released on bail.” And once the material witness is brought into court, the judge must commit the witness to jail “if she is unable to fulfill bail conditions—provided the court must release the witness if at any time thereafter she satisfies the court’s demands.”
In her application for the material witness arrest warrant, ADA Smith described Schneyder as a “critical” witness who “ha[d] been threatened by some in the defendant’s family,” and that “[g]iven her previous several failure[s] to appear, it is highly unlikely that she will appear for trial.” Judge Means issued the warrant and the police quickly apprehended Schneyder.
The judge set a bail hearing the day after Schneyder was apprehended and appointed a public defender named Laura Davis to represent the witness. Prior to the hearing, Judge Means informed Smith that while he intended to keep Schneyder in jail until trial, he instructed Smith the inform him if the trial date was “pushed back.” Judge Means on the record at the bail hearing made his distaste known for “setting bail on people who are not accused of crime,” although he ordered Schneyder held in jail when she could not post a $300,000 bail. The judge then informed the parties that “if the case breaks down, let me know early and I’ll let [her] out.” Judge Means added:
“I only intend to keep you (Schneyder) on this bail until you testify or the trial is concluded if you did have it on February 2nd and the Commonwealth says, we don’t need you anymore, we’ve done with you, okay, then I will want them to come back to me and say, look, we don’t have any need for her. If they make a decision at some point on January 31st, we change out mind, we don’t even need the lady, come back to me so I can bring her down and remove this.”
Judge Means then set an “informal status conference” for February 14, 2005 so he could reassess the matter in the event the trial was still going on. The judge would later sign an affidavit in which he stated he had clearly placed a burden on ADA Smith to inform him “if for any reason the case was continued or broke down, as it was my clear intention that, in that event, I would immediately release Mr. Schneyder from custody,” and that if had “been notified the Overby case had been continued, I would have immediately ordered Ms. Schneyder’s release.”
Judge Means was not presiding over Overby’s scheduled February 2nd trial, so he had no independent way of knowing the trial date had been rescheduled for May 5, 2005—a change ADA Smith did not inform the judge about as she had been explicitly instructed to do. And when Smith did not appear at the February 14th statute conference, Judge Means assumed Schneyder had been released from jail. Meanwhile, Schneyder’s family contacted ADA Smith “approximately 25 times” inquiring about why the witness was still in jail and when she would be released. On February 28 Schneyder’s father died, prompting her family, through a sister, to contact Paul Conway, chief of the Philadelphia Defender Association’s Homicide Unit, on March 1st, hoping to secure Schneyder’s release so she could attend her father’s funeral. Conway managed to get an approved visit for Schneyder at the funeral home, but the request for her to attend the funeral itself was denied.
While working on the funeral issue Conway learned that Overby’s trial had been reset for late May. He knew it wasn’t right she had been held in jail that length of time, so he launched an effort to secure her release. ADA Smith rebuffed his initial request to have Schneyder released from jail, so he began preparing a request to have the witness released under “house arrest.” While working on this latter request, Conway contacted Schneyder’s public defender, Laura Davis, who provided him with her “notes” which clearly indicated Judge Means’ intent to release Schneyder in the event Overby’s trial was rescheduled. This revelation made Conway “really angry” and he went straight to Judge Means who was “astonished” to learn that Schneyder was still in jail and immediately ordered her released.
Schneyder filed a 42 U.S.C. § 1983 lawsuit against the Philadelphia District Attorney’s Office and against ADA Smith for the 54 days she had been held in jail, 48 of which was after Overby’s February 2nd trial date had been continued. All of Schneyder’s claims were initially dismissed by the federal district court, but a panel of the Third Circuit reversed the district court’s order that ADA Smith was entitled to “absolute immunity” on Schneyder’s claim that the ADA had violated her Fourth Amendment rights “by failing to notify Judge Means or take any steps to have [Schneyder] released from custody knowing that she would not be needed as a witness in the underlying criminal case for several more months.” On remand, ADA Smith defended against the lawsuit requesting summary judgment, saying the suit should be dismissed because she enjoyed both absolute and qualified immunity. The district court denied Smith’s summary judgment request. The ADA appealed this ruling to the Third Circuit.
The very first issue the appeals court had to determine was whether Schneyder’s detention as a material witness constituted a “seizure” within the parameters of the Fourth Amendment. Following the guidance offered by one of the court’s previous decisions, Gallo v. City of Philadelphia, the Third Circuit concluded: “When the state places constitutionally significant restrictions on a person’s freedom of movement for the purpose of obtaining his presence at a judicial proceeding, that person has been seized within the meaning of the Fourth Amendment.”
Having established that Schneyder had stated a valid Fourth Amendment claim against ADA Smith, the appeals court turned its attention to whether Smith enjoyed either absolute or qualified immunity against the claim. Citing its precedent ruling in Odd v. Malone, the Third Circuit forcefully ruled that ADA Smith did not enjoy absolute immunity against her conduct. The qualified immunity issue was a little thornier. Under the U.S. Supreme Court rule pronounced in Harlow v. Fitzgerald, Schneyder had to establish 1) that the Smith violated her rights, and 2) that the rights were “clearly established” at the time of the alleged violation.
Prior to the Harlow inquiry, the appeals court had made it clear that Schneyder’s Fourth Amendment protection against illegal seizure had been violated. The critical question was whether that right had been “clearly established” in February 2005 when Schneyder was jailed as a material witness. The U.S. Supreme Court, in Anderson v. Creighton, narrowed the focus of the “clearly established” inquiry by saying “ … the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”
More recently, however, the Supreme Court eased back on the “clearly established” inquiry, in Safford Unified Sch. Dist. #1 v. Redding, by holding “to be established clearly, there is no need that ‘the very action in question [have] previously been held unlawful.’ [O]outrageous conduct will be unconstitutional, this being the reason, as Judge Posner has said, that ‘[t]he easiest cases don’t even arise.’ But even as to action less than an outrage, ‘officials can still be on notice that their conduct violates established law in novel factual circumstance.’”
Against this Supreme Court legal backdrop, the Third Circuit concluded with respect to ADA Smith’s conduct:
“Although we are aware of no decision predating Smith’s action that involved the sort of claim that Schneyder has raised here, we are nevertheless convinced that this is one of those exceedingly rare cases in which the existence of the plaintiff’s constitutional right is so manifest that it is clearly established by broad rules and general principles. That is, this ought to have been a member of that class of ‘easiest cases’ that, according to Judge Posner, ‘don’t even arise …’ One of the ‘point[s] of the Fourth Amendment’ is to require that decisions involving citizens’ security from searches and seizures be able wherever practicable by a ‘neutral and detached magistrate’ rather than by a police officer or prosecutor possessed of a natural bias towards uncovering crime and obtaining convictions …’ Thus the [U.S. Supreme] Court has established that a criminal suspect is entitled to a prompt judicial determination that his arrest and detention is justified by probable cause … And numerous courts have reached the almost tautological conclusion that an individual in custody has a constitutional right to be released from confinement ‘after it was or should have been know that the detainee was entitled to release …”
It should have required little thought about these cases, in light of background knowledge of the operation of the Bill of Rights within the justice system, to have given a reasonable prosecutor ‘fair warning’ that she had a duty to ensure that the incarceration of an innocent person was all times approved by a judicial officer.
“Smith took it upon herself to decide that Schneyder ought to be incarcerated well past the point at which explicit judicial authorization had expired. Whether to keep Schneyder in jail should have been the court’s decision, and Smith knew it. Judge Means had announced his intention to let Schneyder go if the trial were moved, but Smith took the position that ‘she should be held until she testified.’ Actually, to say that she ‘took the position’ is too generous, because Smith never presented the court with any such argument. She ‘advocated’ her position by failing to reveal an obviously pertinent fact, thereby preventing the judge from doing his job. Moreover, the stance Smith purports to have taken is so patently erroneous as a matter of constitutional law as to be frivolous.
No reasonable prosecutor would think that she could indefinitely detain an innocent witness pending trial without obtaining authorization. And there can be no doubt that is what Smith intended. The trial at which Schneyder was to testify did not take place until more than a year and a half after her arrest, and there is no indication that Smith would ever have taken steps of her own volition to free her key witness or even have her status reviewed. If the initial continuance was not something Smith felt a need to report, there is no reason to think she would have advised Judge Means of any of the subsequent developments. Were it not for the persistence of Schneyder’s family and the generous efforts of a public defender with cases of his own and no prior connection to the plaintiff, there can be no telling how long she would remained locked up.
“’When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law …’ The self-evident wrongfulness of Smith’s conduct is sufficient to place her in either category. She is not entitled to qualified immunity.”
That is as blistering of an indictment of prosecutorial misconduct as you will ever read in a court opinion. The arrogance underlying ADA Smith’s misconduct boggles the mind of any ordinary, rational person. So why would she do it? Why would she deliberately choose to engage in behavior she knew was illegal? We offer three possible answers: First, she mistakenly believed that “qualified immunity” would save her from any liability her misconduct may have presented. Second, she knew Pennsylvania taxpayers, particularly those in Philadelphia, would incur the costs of her having to defend against any lawsuit brought by Schneyder as well as pick up the tab for any monetary damages a jury might award to Schneyder. Third, ADA Smith was blinded by the power and self-righteousness.
In effect, ADA Smith knew she had a license to engage in misconduct because there was no way she would be held individually liable. Not only does prosecutorial misconduct undermine our criminal justice system, it cost taxpayers hundreds of millions to pay the damages juries nationwide award to wronged criminal defendants. And, at the end of the day, it is taxpayers who must demand individual accountability for rogue prosecutors, otherwise they will continue to operate with a sense impunity.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization