Preserving Error in Cases of “Contumacious” Prosecutorial Misconduct

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Let us say at the outset that many prosecutors are fine, decent people who honorably fulfill their charged task of seeking the truth and justice—to convict the guilty and free the innocent. They believe in a fair testing of their case in our adversarial criminal trial process. We respect prosecutorial zeal, even though we’re always on the other side.


But when it comes to prosecutorial misconduct, it’s truly disheartening. It’s a disease without a cure—a blight on our fundamental notions that the criminal trial process must seek the truth and ensure that the interests of justice are served. Yes, with this piece, as we have with others, we’re once again talking about that prosecutorial epidemic—the Ebola virus that infects our justice system. It’s like a plague of locusts consuming everything in sight. And there’s nothing we can do about these night riders lynching the very integrity of our judicial system under the cover of darkness and in pursuit of “conviction at any costs.” Punish them? Arrest them? Disbar them? It’s not going to happen. The marshals charged with protecting the integrity are turning a “blind eye” to these night riders. So what, some will say? Integrity, after all, is in the eyes of the beholder, and, of course, it’s subject to expanding definitions. The price of a few innocent people going to jail is well worth convicting the guilty.  This is not about Truth; it is about Justice and dispute resolution.


Given their consistent complicity, that must be the way our appellate courts see the issue of prosecutorial misconduct. A little Ebola is necessary to get all the bad apples out of the barrel, even if that means taking some good ones out in the process.


This past December we called your attention to a 2009 report titled “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The report was released by the Northern California Innocence Project at the Santa Clara University School of Law. The report dealt with 4,000 California and federal appellate court rulings rendered between 1997 and 2009 concerning prosecutorial misconduct.


As would be expected by seasoned criminal defense attorneys, the appellate courts determined that only 707 of the cases involved actual misconduct. In another 282 cases the courts did not even address the prosecutorial misconduct issue because, as the courts reasoned, the defendants received a “fair trial.” In the remaining 3000-plus cases the courts explicitly found that there was no prosecutorial misconduct involved in those convictions. Not surprisingly then, the courts could muster up just enough ethical fortitude to find that in only 159 of the 707 cases in which misconduct was found had the defendants suffered actual harm to result in some form of relief—new trials, new sentencing hearings, etc. In the remaining 548 cases the courts upheld the convictions that the prosecutorial misconduct did not deprive the defendants of a fair trial.


Dr. Emily D. West, Research Director with the New York-based Innocence Project, decided to see just how tolerant of prosecutorial misconduct Texas appellate courts are. The State, with the third highest rate of DNA exonerations and the highest in death penalty cases in the nation, did not disappoint. In an April 6, 2012 edition of the Austin Chronicle, Jordan Smith said Dr. West found 91 criminal cases between 2004 and 2008 in which prosecutorial misconduct was confirmed, and not one, zero, resulted in any disciplinary action against the prosecutors involved. Dr. West pointed out that another 124 cases raised the issue of prosecutorial misconduct but they were judicially ducked by the courts without a ruling.


Dr. West, who is leading a Prosecutorial Oversight tour across the country, told an audience of students, legislative aides, judges and lawyers at the University of Texas last month that the Texas cases are “just a tip of the iceberg” because 98 percent of criminal defendants in the state plead guilty through a plea bargain. In the 91 Texas cases involving prosecutorial misconduct, Dr. West found that they fell into the following categories as reported by the Chronicle: 38 involved “improper” arguments during trial, 35 involved improper questioning of a witness, and 8 involved a failure to disclose Brady material.


Michael Morton, who was wrongfully convicted in Williamson County and spent 25 years in prison for the murder of his wife before being released last year (here and here), also addressed the UT gathering. “I do not crave fame and fortune; I do not want to be recognized on the street,” he said. “I am here because I am you. People think this sort of thing happens to someone else – people with criminal records or who live ‘on the wrong side of town. [So] remember, you can be me, because I am you.”


John Thompson, who was also wrongfully convicted and spent 18 years in the Louisiana prison system, including 14 on the death row, told the UT audience that prosecutorial misconduct is compounded by ineffective, poorly trained defense attorneys who do not know how or do not want to raise a misconduct issue.


Texas case law imposes a duty on defense counsel who encounters prosecutorial misconduct to (1) make a timely and specific objection, (2) request an instruction that the jury disregard the matter improperly placed before it by the prosecutor, and (3) to move for a mistrial. The essential requirement necessary to have a prosecutorial misconduct claim heard on appeal is a timely, specific request that is refused by the trial court, and this must be made at the “earliest possible moment” during the trial.


Between 1973 and 1976, the Texas Court of Criminal Appeals reversed three convictions because of prosecutorial misconduct (here, here, and here). Ten years later, in Landry v. State, the court discussed the legal backdrop of those three 1970s cases: “First, in all three cases cited, the defendants objected to the conduct of the prosecutor. Secondly, the prosecutors were, by their actions, deliberately violating an express court order. Thirdly, in reversing [those] cases, this Court relied upon prosecutorial misconduct so blatant as to border on contumacious.”


Put simply, those three 1970s cases established a standard still applicable today—and reflect the political environment where not a single prosecutor in the 91 cases of confirmed prosecutorial misconduct was disciplined.


Do you know what “contumacious” means? It has a single definition: “willfully obstinate; stubbornly disobedient.” And now that we know what “contumacious” means, how does it play out in the courtroom setting. The Fourteenth District Court of Appeals here in Harris County just dealt with this issue last year in Baker v. State, a DWI case.


On February 28, 2008, Breanna Baker was stopped by the police after midnight for speeding. The officer at the scene, as they always do in these kinds of cases, detected a “strong odor of alcohol,” and observed that the Ms. Baker’s eyes were “bloodshot and glassy” and her speech “slightly slurred.” At that point Ms. Baker reportedly told the officer she had consumed three beers but “later admitted to four or five beers.” When the officer testified at Ms. Baker’s subsequent trial, defense counsel objected to any admissions about the number of beers Ms. Baker had consumed. “I think that goes beyond [the prosecutor’s question about that.”


The trial judge excused the jury so that it could properly resolve defense counsel’s objection. The officer told the court that after Ms. Baker said she had consumed three beers, he conducted “four standardized field sobriety tests” before asking Ms. Baker again how many she had consumed at which time she admitted it had been “four or five beers.” The entire traffic stop was videotaped by a camera inside the officer’s vehicle. There was no dispute about what Ms. Baker said; however, defense counsel argued that Ms. Baker was entitled to a Miranda warning prior to the second round of questioning because she was in police custody. The trial court agreed.


The trial judge instructed the prosecutor as follows: “So you just need to cut the video when it gets to that point, cut the sound off.” The prosecutor nonetheless played to the jury a portion of interaction between the officer and Ms. Baker which had been suppressed by the court. Defense counsel objected as the video was being played, “Your Honor, I would like to ask that that be stricken from the record, the question—“The judge sustained the objected and instructed the jury to “disregard that question.” The judge, however, denied defense counsel’s follow up request for a mistrial.


The prosecutor in this case was clearly bent on not playing by the rules. During voir dire, he asked prospective jurors, “is there anybody here who has been personally affected by driving while intoxicated?” One prospective juror responded that he “was hit from behind by a motorcycle” and “paralyzed from the waist down for six months.” And as if this voir dire conduct was not prejudicial enough, the prosecutor stated during his closing argument: “[W]e already know that the law is driving while intoxicated and we know why the law is driving while intoxicated because people who drive while intoxicated are dangerous in our community. You heard from a man who had been paralyzed for six months because of a drunk driver, an intoxicated driver he came in contact with.”


Defense counsel once again objected to the prosecutor’s statement as “outside the evidence” (the paralyzed man had not testified during the trial). The trial judge once again sustained the objection and instructed the jury to disregard it and denied counsel’s request for a mistrial.


On appeal, defense counsel alleged “prosecutorial misconduct” by the prosecutor playing portions of the videotape suppressed by the trial court and by making the statement about the paralyzed man to the jury in his closing argument. The appeals court denied both claims. Why?


First, the State argued it had not violated the trial court’s suppression order concerning the videotape; and, secondly, his paralyzed man statement was “permissible jury argument as a plea for law enforcement.”


With respect to the videotape issue, the appeals court held:


“Appellant complains that the prosecutor violated her Fifth Amendment privilege against self-incrimination by showing the jury a portion of appellant’s videotaped interaction with the arresting officer, which the trial court had suppressed. However, we cannot determine from the record whether the prosecutor proffered any suppressed statements. The trial court ruled, ‘I am suppressing the last statement … So you just need to cut the video when it gets to that point.’ Consequently, the record does not reflect the exact moment when the videotape stopped. But while the videotape was playing, appellant’s counsel asked that ‘the question’ be stricken from the record; that the trial court sustained the objection and instructed the jury to ‘disregard that question.’ Even if the suppressed statement on the videotape had been played to the jury, appellant did not asked that it be stricken from the record.


“Even if the prosecutor had violated the trial court’s suppression order, appellant did not object on the basis of prosecutorial misconduct and thus did not preserve the issue for review. If the appellant had preserved the issue at that point, moreover, the objected-to evidence was admitted earlier during the trial when the officer testified appellant told him she had drunk three beers but ‘later admitted to four to five beers.’ Although defense counsel objected to the officer’s testimony as outside the scope of the prosecutor’s question and the trial court held, outside the presence of the jury, that he would suppress appellant’s ‘last statement,’ when the jury returned appellant’s attorney did not request an instruction from the trial court for the jury to disregard the officer’s testimony regarding appellant’s admission. Likewise, appellant’s counsel did not request a mistrial at that point. Thus, he waived any error regarding the admissibility of appellant’s statement.”


With respect to the prosecutor’s improper jury argument, the appeals court said:


“We note that appellant properly preserved his complaint that the prosecutor’s comment referred to matters outside the record. It is clearly improper to invite the jury to consider facts outside the record. But the prosecutor’s comment was quickly followed by an instruction to disregard from the trial court that we presume was followed by the jury. Only offensive or flagrant conduct provides a basis for reversal when there has been a trial court instruction to disregard, and, in the case at bar, the comment was not so flagrant that the instruction to disregard was ineffective.”


The appeals court summed it up this way: “The prosecutor’s comment was cured by the trial court’s instruction to disregard because the comment was not ‘so blatant as to border on being contumacious.’”


Alright, let’s see if we can get this straight. Even if the prosecutor had engaged in misconduct with respect to the videotape issue, it was defense counsel, not the prosecutor, who was “contumacious” because he did not adhere to the criteria of those three 1970s cases about how to preserve a prosecutorial misconduct for appellate review. And while the prosecutor’s argument to the jury was improper, to say the least, it was just misdemeanor “contumaciousness.”


In effect, the appellate courts have erected procedural prerequisites around the “prosecutorial misconduct” issue that make it virtually impossible to establish misconduct. There should be no felony/misdemeanor distinction when it comes to prosecutorial misconduct in a criminal trial; and whether or not the issue should be addressed should not depend upon what defense counsel does or does not do. Prosecutorial misconduct should be addressed as the damaging aberration it is—and if an appellate court does not sanction the misconduct with a reversal of conviction, it should at least refer all claims of prosecutorial misconduct to the State Bar or, in egregious cases, for prosecution, if you can find a state offense that applies. This process may not result in disciplinary action as it didn’t in the 91 cases confirmed by Dr. West, but at least it would notice that particular prosecutor, and his colleagues, that misconduct is subject to immediate reporting to the State Bar, a review, and possible disciplinary sanctions.


And criminal defense attorneys bear a heavy burden in addressing this issue. When they encounter even suspected prosecutorial misconduct, they must (1) make a timely and specific objection, (2) request an instruction that the jury disregard the matter improperly placed before it by the prosecutor, and (3) to move for a mistrial. The objection and request for mistrial are essential. We would also suggest that, outside the presence of the jury, that defense counsel move the court to refer the prosecutor’s misconduct to the State Bar for review; and the oral motion should be supplemented with a written motion. Put the misconduct issue directly in the lap of the trial judge which forces appellate judges to fulfill their obligations to report all claims of misconduct—big and small contumacious alike—to the State Bar.


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