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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41084
WILLIAM W. GOODSON,
Plaintiff-Appellant-Cross- Appellee,
v.
CITY OF CORPUS CHRISTI; CORPUS CHRISTI POLICE DEPARTMENT; POLICE CHIEF; OFFICER B.J. GAINES; and OFFICER F.V.PEREZ,
Defendants-Appellees-Cross- Appellants.
_______________________________
Appeals from the United States District Court
for the Southern District of Texas
_______________________________
January 26, 2000
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellant William W. Goodson ("Goodson") appeals from thedistrict court's grant of summary judgment in favor of appelleesCity of Corpus Christi ("The City"), City of Corpus ChristiPolice Department, the Police Chief, and Officers B.J. Gaines("Gaines") and F.V. Perez ("Perez") (collectively "Appellees") onhis 42 U.S.C. � 1983 claims. The appellees also cross-appeal,asking for summary judgment, instead of remand to state court, onGoodson's state law claims. Because the district court drewconclusions of law from disputed facts, we reverse and remand.
I. Factual and Procedural Background
At approximately 11:20pm, on April 23, 1995, Gaines heard aBOLO ("be on the look out") for a white male, approximately sixfeet tall, heavy-set, and dressed like a cowboy, possibly headingto a cowboy bar. The suspect had been involved in a familyassault on Violet Road, in Corpus Christi, Texas.
When Gaines heard the BOLO, he was en route to investigate acomplaint about loud music at a bar near Leopard and MainStreets. Perez accompanied him in a separate car as back-up. After hearing the BOLO, Gaines noticed the hapless Goodsonwalking along Leopard Street. Goodson, who is 5' 10" and weighed260 pounds at the time, (1) wore a paint-splattered long-sleevebutton-down shirt, khaki pants and a baseball hat. The partiesdispute whether he wore boots and a belt; Goodson claims to haveworn velcro tennis shoes and no belt. At this initial siting,Goodson was approximately 3 miles from Violet Road, about half amile from the Whataburger-where he was heading to have a cup ofcoffee and call his brother for a ride home-and in the vicinityof The Frontier, a cowboy bar.
Gaines and Perez continued to their call on Leopard and MainStreets, determined that the music was within lawful decibellevels, and returned about 10 minutes later to the corner ofLeopard and Rand Morgan Streets, where Goodson was crossing themedian on his way to the Whataburger across the street.
The parties dispute virtually every aspect of the ensuinginteraction. According to Gaines, he turned on the flashinglights on his police car, exited the vehicle and approachedGoodson. Gaines says he asked Goodson for identification, whichGoodson failed to produce. Instead, Goodson asked if he wasunder arrest. Gaines testified that he told Goodson that he wasbeing detained because he matched the description of a suspectand again requested identification. Gaines alleges that Goodsonagain refused to show identification and spoke in a loud andbelligerent tone. Gaines responded by telling Goodson to placehis hands on the police car so Gaines could frisk him. To this,Gaines says Goodson responded, not by complying, but by asking,again, whether he was under arrest. Gaines states that herepeated that he was merely detaining Goodson and directed him toplace his hands on the car. At this point, Gaines testified,Goodson began moving away, so Gaines grabbed his arm. Goodsonyanked his arm away, turned and fled about 40 feet before Gainesand Perez, who gave chase, tackled him.
Goodson, on the other hand, claims that he voluntarilywalked toward Gaines' car as he headed to the Whataburger. Heinsists that Gaines at no point asked for identification or toldGoodson that he was a suspect in an assault. Rather, Goodsonmaintains that as he approached Gaines, Gaines barked at him toput his hands on Gaines' car. Goodson claims he was startled andasked if he was under arrest. Goodson testified that Gaines toldhim that he was being detained and to put his hands on the car. Before Goodson could comply, he alleges, Gaines grabbed his arm. Goodson stated that he pulled his arm away from Gaines insurprise and stumbled back in an attempt to regain his balanceand maintain a little distance from the police officers. At thatpoint, Goodson claims, Gaines hit his body and Perez grabbed hislegs, and the two felled him with their tackle.
The parties agree that Gaines and Perez broke Goodson'sshoulder when they tackled him. Goodson testified that he knewhis arm was broken immediately because he heard it crack when hehit the ground. Gaines and Perez rolled Goodson over to placehim in handcuffs. Goodson told them his shoulder was broken, butthey nevertheless jerked his arm back and cuffed him. While theywere doing this, one of the officers yelled, "We'll teach you torun from us, you son of a bitch."
At 11:52pm, Gaines radioed the police station and reportedthat Goodson was hurt. Only a minute earlier, Officer ChrisLynch, who had issued the initial BOLO for a tall, heavy-setwhite man dressed like a cowboy, radioed that he had apprehendedthe suspect in question at The Cowboy, a bar approximately eightmiles from the corner of Leopard and Rand Morgan Streets.
Goodson spent 8 days in the hospital, at a cost of almost$32,000. He needed a plate and screws inserted into hisshoulder, and he will likely need his entire shoulder replaced inthe future. As a result of his injury, he missed a year of work.
On May 16, 1995, through a letter written by his attorney,Goodson advised the City of his injury and claim. The Cityresponded by prosecuting Goodson for evading detention orarrest. (2) The City filed its complaint on July 13, 1995. Policeofficers arrested Goodson for this crime on November 10, 1995,while he was at a job interview. The prosecutor eventuallydismissed the case on February 24, 1997.
On April 7, 1997, Goodson filed this action in state court,alleging, inter alia , unlawful detention, illegal arrest,excessive force, malicious prosecution, improper training andsupervision, and tolerance of a pattern and practice of excessiveforce in violation of � 1983. The appellees removed this case tofederal court on May 14, 1997. The district court issued itsorder granting summary judgment on July 31, 1998.
The district court found that Goodson met the description inthe BOLO. It therefore held that Gaines and Perez had reasonablesuspicion to stop Goodson, and granted Gaines and Perez qualifiedimmunity on the unlawful detention claim.
The district court also found that Goodson pulled his armaway from Gaines and stepped away from the officers; thus, theofficers had probable cause to believe that Goodson was evading alawful detention, and qualified immunity likewise shielded Perezand Gaines from the illegal arrest claim.
The district court further held that Gaines and Perez didnot use excessive force when they tackled or handcuffed Goodsonso that qualified immunity protected them from liability forGoodson's injury in that respect as well.
Because the district court found that Gaines and Perez actedwith probable cause when they arrested Goodson, the lower courtgranted the City summary judgment on that claim. It also grantedthe City summary judgment on Goodson's other claims because theCity could not be liable for improper training and supervision orfor tolerating a pattern and practice of excessive force ifGaines and Perez had committed no constitutional violations.
Goodson timely filed this appeal.
II. Standard of Review
We apply de novo review to summary judgment motions andevaluate the case under the same standards employed by thedistrict court. See Shakelford v. Deloitte & Touche, LLP , 190F.3d 398, 403 (5th Cir. 1999).
The district court should grant summary judgment where "thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); see also Christopher Village, LP v.Retsinas , 190 F.3d 310, 314 (5th Cir. 1999). "An issue isgenuine if the evidence is sufficient for a reasonable jury toreturn a verdict for the nonmoving party." Owsley v. San AntonioIndep. Sch. Dist. , 187 F.3d 521, 523 (5th Cir. 1999), petition for cert. filed (Jan. 18, 2000) (No. 99-1205). "Although weconsider the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the nonmovant, thenonmoving party may not rest on the mere allegations or denialsof its pleadings, but must respond by setting forth specificfacts indicating a genuine issue for trial." Rushing v. KansasCity S. Ry. Co. , 185 F.3d 496, 505 (5th Cir. 1999), petition for cert. filed (Dec. 28, 1999) (No. 99-1090). III. Discussion
Goodson claims that the district court erred when itconcluded that he had not produced sufficient evidence to survivesummary judgment on the qualified immunity issue. Goodson alsoargues that the district court erred when it decided that Goodsonhad not shown a genuine issue of material fact on the issue ofprobable cause, which is critical to his malicious prosecutionclaim. Finally, Goodson maintains that the district court erredwhen it denied Goodson further discovery on his claims againstCity and, instead, dismissed those claims.
Gaines and Perez counter that they are entitled to qualifiedimmunity because they had reasonable suspicion for the initialstop and probable cause for the arrest, and they did not useexcessive force. The City argues that the district courtcorrectly concluded that, because Gaines and Perez acted withprobable cause, the malicious prosecution claim fails. Finally,the Appellees insist that the district court erred when itremanded the state law claims rather than granting the appelleesthe summary judgment to which, they insist, they are entitled. A. Qualified Immunity
In considering Gaines and Perez's qualified immunity claim,we must remain cognizant of the fact that the "qualified . . .immunity doctrine was established to reconcile two competinginterests. One interest is the compensation of persons whosefederally protected rights have been violated. Opposing this isthe fear that personal liability will inhibit public officials inthe discharge of their duties." Johnston v. City of Houston , 14F.3d 1056, 1059 (5th Cir. 1994). For that reason, "governmentofficials performing discretionary functions generally areshielded from liability for civil damages insofar as theirconduct does not violate clearly established statutory orconstitutional rights of which a reasonable person would haveknown." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); see also Wilson v. Layne , 119 S. Ct. 1692, 1699 (1999). The doctrine isgenerally available to government officials sued, as Gaines andPerez here are, under � 1983. See Johnston , 14 F.3d at 1059.
The Supreme Court enunciated a two-prong test to ascertainthe viability of a government official's assertion of qualifiedimmunity in Siegert v. Gilley , 500 U.S. 226 (1991). First, wemust examine whether the "plaintiff has alleged a violation of aclearly established right." Fontenot v. Cormier , 56 F.3d 669,673 (5th Cir. 1995); see also Siegert , 500 U.S. at 231.
Second, we must ask whether the defendants' conduct wasobjectively reasonable in light of "clearly established" law atthe time of the alleged violation. Siegert , 500 U.S. at 231-32; see also Kelly v. Foti , 77 F.3d 819, 821 (5th Cir. 1995). "Objective reasonableness is a matter of law for the courts todecide[.]" Williams v. Bramer , 180 F.3d 699, 702 (5th Cir.1999). The touchstone of this inquiry is whether a reasonableperson would have believed that his conduct conformed to theconstitutional standard in light of the information available tohim and the clearly established law. See Gutierrez v. City ofSan Antonio , 139 F.3d 441, 447 (5th Cir.1998). Therefore,"[e]ven law enforcement officials who 'reasonably but mistakenly[commit a constitutional violation]' are entitled to immunity." Hunter v. Bryant , 502 U.S. 224, 227 (1991) (quoting Anderson v.Creighton , 483 U.S. 635, 641 (1987)). In terms of law being"clearly established," "[t]he contours of the right must besufficiently clear that a reasonable official would understandthat what he is doing violates that right." Anderson , 483 U.S.at 640; see also Wilson , 119 S. Ct. at 1699.
As we explain below, we find that Goodson alleged aviolation of his clearly established rights to be free fromseizure without reasonable suspicion, arrest without probablecause and excessive force, and that a genuine issue of materialfact exists as to whether Gaines and Perez's conduct wasobjectively reasonable under the circumstances. We thereforehold that, because of the disputed facts, Gaines and Perez arenot entitled to qualified immunity as a matter of law.
B. Reasonable Suspicion for Detention
Pursuant to Terry v. Ohio , 392 U.S. 1, 30 (1968), policeofficers may stop and briefly detain an individual forinvestigative purposes if they have reasonable suspicion thatcriminal activity is afoot. "Reasonable suspicion must besupported by particular and articulable facts, which, takentogether with rational inferences from those facts, reasonablywarrant an intrusion." United States v. Michelletti , 13 F.3d838, 840 (5th Cir. 1994) (en banc). "The officer, of course,must be able to articulate something more than an 'inchoate andunparticularized . . . "hunch"'. The Fourth Amendment requires'some minimal level of objective justification' for making thestop." United States v. Sokolow , 490 U.S. 1, 7 (1989) (citationsomitted). Nevertheless, "[t]his reasonable suspicion standard isless demanding than the probable cause standard[.]" UnitedStates v. Sanders , 994 F.2d 200, 203 (5th Cir. 1993).
"The presence or absence of reasonable suspicion must bedetermined in light of the totality of the circumstancesconfronting a police officer, including all information availableto the officer at the time of the decision to stop a person." United States v. Silva , 957 F.2d 157, 160 (5th Cir. 1992). "Factors that ordinarily constitute innocent behavior may providea composite picture sufficient to raise reasonable suspicion inthe minds of experienced officers[.]" United States v. Holloway ,962 F.2d 451, 459 (5th Cir. 1992).
Reasonable suspicion is a question of law, to which we applyde novo review. Silva , 957 F.2d at 159.
Here, the precise issue is whether Goodson's physicalappearance fit the description of the BOLO sufficiently to giverise to reasonable suspicion that he was the suspected assailant. We hold that, because Goodson's physical appearance is a disputedissue of fact, the district court could not make a determinationof reasonable suspicion on summary judgment. (3)
The BOLO gave reasonable suspicion to stop and, because ofthe violent nature of the suspected crime, frisk a tall, heavy-set, white man dressed as a cowboy. To have reasonable suspicionto stop and frisk Goodson based on the BOLO, Gaines would have toharbor a reasonable belief that Goodson matched the descriptionin the BOLO. If Goodson was dressed as he claims-in a paint-splattered, long-sleeved button-down shirt, khaki pants, no belt,velcro tennis shoes, and a baseball cap-then he would not havebeen dressed as a cowboy and would have matched the BOLO in onlythe vaguest of its terms. (4) The BOLO would not give Gainesreasonable suspicion to stop and frisk any tall, heavy-set, whiteman. Such a description would simply be too vague, and fit toomany people, to constitute particular, articulable facts on whichto base reasonable suspicion. See United States v. Jones , 619F.2d 494, 497-98 (5th Cir. 1980) (finding no reasonable suspicionwhere the suspect matched the following partial description:"black male, 5 feet 6 inches to 5 feet 9 inches tall and weighingbetween 150 and 180 pounds, with a medium afro hair style, whowas wearing jeans and a long denim jacket."); United States v.Rias , 524 F.2d 118, 121 (5th Cir. 1975) (finding no reasonablesuspicion where the suspects matched the following description:two black men driving a black or blue Chevrolet).
Moreover, reasonable suspicion derives from particular,articulable facts and the inferences from those facts. IfGoodson was dressed as he claims, at least two inferences thatGaines would have had to draw from Goodson's physical presencefurther undercut any reasonable suspicion that Goodson committedthe assault on Violet Road. First, to have been the assailant,Goodson must have changed his clothing between Violet Road andLeopard Street. Such behavior would be very strange from someonewho reportedly was heading to another cowboy bar.
Second, the assailant described by the BOLO allegedly threwhis wife out of his car. Yet Goodson was walking along adesolate street, something he hardly would be doing if he had acar. (5) Therefore, to conclude that Goodson matched the BOLO,Gaines would have to infer that Goodson parked or left his carsomewhere and began walking in a direction away from the nearestcowboy bar on a deserted street-behavior, again, that would beexceptional from an individual reportedly headed to a cowboy bar. On the other hand, if Goodson was dressed as Gainesclaims-in a long-sleeved button down shirt, khakis, cowboy boots,a belt with an over-sized belt buckle, and a baseball cap-thenGoodson would have met the description in the BOLO withsufficient specificity to give rise to reasonable suspicion tostop and frisk him. The factual dispute over Goodson's physicalappearance is thus crucial to the issue of qualified immunity. (6)
Additionally, one other factual dispute bears on thequestion of reasonable suspicion. Gaines alleges that he askedGoodson for identification twice and told Goodson that he was asuspect in an assault. Goodson's belligerent response andrefusal to identify himself, Gaines says, is what led Gaines tofrisk him. Goodson, on the other hand, claims that Gaines firstsought to frisk him and never asked for identification orrevealed that Goodson might be a suspect in an assault. (7) To havereasonable suspicion to frisk Goodson, Gaines would have to pointto particular, articulable facts indicating that Goodson wasarmed or posed a danger. See Sanders , 994 F.2d at 203 ("A policeofficer may conduct such a limited search if 'a reasonablyprudent [person] in the circumstances would be warranted in thebelief that his safety or that of others was in danger.'"(quoting Terry , 392 U.S. at 27)). If Goodson met the descriptionin the BOLO, then Gaines would have reasonable suspicion tosuspect Goodson of having committed an assault, and wouldtherefore have reasonable suspicion to frisk him.
If Goodson did not match the BOLO with sufficientspecificity, however, Gaines could not rely on the BOLO toprovide reasonable suspicion to frisk Goodson. (8) Gaines couldapproach Goodson, as he could approach anyone on the street, andask permission to ask questions or ask for identification. See Florida v. Bostick , 501 U.S. 429, 435 (1991) ("[E]ven whenofficers have no basis for suspecting a particular individual,they may generally ask questions of that individual . . . [and]ask to examine the individual's identification . . . as long asthe police do not convey a message that compliance with theirrequest is required." (citations omitted)); United States v.Cooper , 43 F.3d 40, 145 (5th Cir. 1995) ("[A] consensualencounter . . . . may be initiated by the police without anyobjective level of suspicion."). Gaines could not, however,begin his encounter with Goodson by frisking him. (9) Therefore, ifGaines did ask for identification and Goodson refused, thenGoodson's physical appearance has less bearing on the issue ofqualified immunity; if, however, Gaines sought, withoutpreliminary questioning, to frisk Goodson, then Gaines would haveto have had reasonable suspicion, and Goodson's physicalappearance is of paramount importance.
The factual disputes over Goodson's attire and Gaines'sinitial remarks are therefore critical to the question ofqualified immunity. Though Goodson has clearly alleged a stopand frisk without reasonable suspicion, we are unable todetermine whether Gaines acted in an objectively reasonablemanner without resolving these factual disputes.
The lower court erred when it focused too closely on thefact that reasonable suspicion is a question of law. This isobviously true, but, even though the district court willdetermine at trial as a matter of law whether reasonablesuspicion existed, the district court cannot draw conclusions oflaw from disputed facts at the summary judgment phase. Thisprinciple was set forth in Johnston v. City of Houston , 14 F.3dat 1056, which squarely controls this case. There, we rejectedthe defendant's claim to summary judgment on the qualifiedimmunity issue because "[d]ivergent versions of what happenedhave been offered by Appellants and Johnston." Id. at 1058. Weheld that, because "a genuine dispute as to the material andoperative facts of this case exists, . . . . [s]ummary judgmentis inappropriate unless plaintiff's version of the violationsdoes not implicate clearly established law." Id. at 1061. See also Hart v. O'Brien , 127 F.3d 424, 432 (5th Cir. 1997) ("[W]ewill not consider disputed facts in determining whether theofficers had, or reasonably believed that they had, probablecause to search Hart's home or to arrest her."); Mangieri v.Clifton , 29 F.3d 1012, 1016 n.6 (5th Cir. 1994); Lampkin v. Cityof Nacogdoches , 7 F.3d 430, 435 (5th Cir. 1993).
Goodson has submitted sufficient evidence suggesting that hewas not dressed like a cowboy and that Gaines attempted to friskhim without any preliminary questioning to survive summaryjudgment on this aspect of the issue of qualified immunity. Whether Goodson's evidence is more credible than Gaines's is aquestion for the trier of fact. On summary judgment, we do notmake such determinations; rather, we view the evidence in thelight most favorable to the non-movant, here Goodson. Wetherefore reverse the district court's grant of qualifiedimmunity on this issue and remand for a trial on the merits.
We caution that our holding today is extremely narrow. Weexpress no opinion as to whether Gaines and Perez acted in anobjectively reasonable manner or whether they ultimately will beentitled to qualified immunity. Our only holding is that wecannot tell, at the summary judgment stage of the case where wemust view the evidence in the light most favorable to Goodson,whether Gaines and Perez acted in an objectively reasonablemanner. At trial, however, "a very different picture may resultthan the one painted by the summary judgment record because[Goodson] must prove the issues that this opinion assumes in hisfavor, and the jury can choose to credit certain facts overothers, which we cannot do in reviewing a denial of summaryjudgment." Gutierrez , 139 F.3d 451.
C. Probable Cause for Arrest
"Probable cause is present 'when the totality of the factsand circumstances within a police officer's knowledge at themoment of arrest are sufficient for a reasonable person toconclude that the suspect had committed or was committing anoffense.'" Vance v. Nunnery , 137 F.3d 270, 276 (5th Cir. 1998)(quoting United States v. Levine , 80 F.3d 129, 132 (5th Cir.1996)). Gaines and Perez are entitled to qualified immunity fortheir arrest of Goodson if a reasonable person in their positioncould have believed he had probable cause to arrest Goodson forthe crime of evading detention or arrest.
The statute pursuant to which Gaines and Perez arrestedGoodson states, "A person commits an offense if he intentionallyflees from a person he knows is a peace officer attemptinglawfully to arrest or detain him." Tex. Penal Code � 38.04(a). The parties dispute whether Goodson fled. But that dispute isnot dispositive of the qualified immunity question at thismoment. Rather, the pressing issue is whether Gaines and Perezcould have reasonably believed that their detention of Goodsonwas lawful. Obviously, if the detention was not lawful, theneven if Goodson fled, Gaines and Perez would not have hadprobable cause to believe that Goodson was violating � 38.04(a). Only if the detention was lawful does the dispute over whetherGoodson fled become relevant.
Therefore, a genuine issue of material fact exists on thequestion of whether Gaines and Perez could have reasonablybelieved that their detention of Goodson was lawful. Just asthat dispute foreclosed summary judgment on the qualifiedimmunity issue for the reasonable suspicion claim, it likewiseprevents a summary judgment grant of qualified immunity on theprobable cause claim. We thus reverse the district court andremand for a trial on the merits of the probable cause claim.
D. Excessive Force
In the Fifth Circuit, to succeed on an excessive forceclaim, the plaintiff bears the burden of showing: "(1) an injury(2) which resulted directly and only from the use of force thatwas clearly excessive to the need and (3) the force used wasobjectively unreasonable." Williams , 180 F.3d at 703.
Goodson has produced sufficient summary judgment evidence tosuggest that he suffered a broken shoulder as a result of beingtackled by Gaines and Perez, who lacked reasonable suspicion todetain or frisk him and from whom he was not fleeing. A factissue therefore exists as to the objective reasonableness of theforce used. We therefore reverse the district court's grant ofqualified immunity in favor of Gaines and Perez and remand for atrial on the merits.
E. Malicious Prosecution
"The constitutional right to be free from bad faith ormalicious prosecution is 'sufficient to support a damage judgmentagainst state law enforcement officials under 42 U.S.C. � 1983.'" Sanders v. English , 950 F.2d 1152, 1163 (5th Cir. 1992) (quoting Hand v. Gary , 838 F.2d 1420, 1424 (5th Cir. 1988)). The elementsof a malicious prosecution claim are: (1) the state commences acriminal prosecution against the plaintiff; (2) the defendantscaused or aided the prosecution; (3) the prosecution terminatedin plaintiff's favor; (4) the plaintiff was innocent; (5) thedefendants acted without probable cause; (6) the defendants actedwith malice; and (7) the criminal proceeding damaged theplaintiff. See Kerr v. Lyford , 171 F.3d 330, 340 (5th Cir.1999); Hayter , 154 F.3d at 275.
The parties only dispute element five: lack of probablecause. The City argues that because Gaines and Perez hadprobable cause to arrest Goodson, it cannot be liable formalicious prosecution. For the reasons stated above, whetherGaines and Perez had probable cause depends upon disputed factsthat preclude a grant of summary judgment in the City's favor onthe malicious prosecution claim. We therefore reverse thedistrict court on this claim and remand for a trial on themerits.
F. Improper Training and Supervision
The district court concluded that, because Gaines and Perezhad committed no constitutional violations, no cause of actionfor improper training and supervision or tolerating a pattern andpractice of excessive force could lie against the City. Thedistrict court therefore denied Goodson discovery on theseclaims. Because we reverse the district court's grant ofqualified immunity to Gaines and Perez, we must also remandGoodson's claim against the City for additional discovery.
G. State Law Claims
We review discretionary remands pursuant to 28 U.S.C. � 1367for an abuse of discretion. See Kennedy v. Texas Utilities , 179F.3d 258, 265 (5th Cir. 1999). District courts, as the lowercourt in this case did, "may remand supplemental state law claimswhen [they have] dismissed the claims that provide the basis fororiginal jurisdiction." Giles v. Nylcare Health Plans, Inc. , 172F.3d 332, 339 (5th Cir. 1999). However, where a district courterroneously dismisses the claims providing original jurisdiction,for instance, by improperly granting summary judgment, it abusesits discretion in remanding the state law claims. See Kennedy ,179 F.3d at 165. Because we reverse the district court's grantof summary judgment on the federal claims, we likewise reverseits remand to state court of the state law claims, and we remandto the district court for a trial on the merits.
IV. Conclusion
Because the district court improperly drew legal conclusionsfrom disputed facts, we reverse its grant of qualified immunityon summary judgment in favor of Gaines and Perez on the issues ofunlawful detention, illegal arrest and excessive force, and weremand those causes of action for a trial on the merits.
Similarly, the district court erred when it dismissedGoodson's malicious prosecution claim on the ground that Gainesand Perez had probable cause to arrest Goodson. We thereforereverse and remand for a trial on the merits.
Moreover, the district court erred when it concluded that noliability could lie against the City because Gaines and Perez hadcommitted no constitutional violation. We thus reverse andremand those claims for additional discovery.
Finally, the district court abused its discretion when itremanded the state law claims on the basis of an erroneousdismissal of all the claims that provided original jurisdiction. We therefore reverse the district court's remand to state courtof the state law claims and remand for a trial on the merits.
REVERSED and REMANDED.
1. 1 Goodson has lost a significant amount of weight since his injury.
2. 2 The record contains conflicting information as to whether the charge wasevading detention or arrest. The complaint, filed on July 13, 1995, accusesGoodson of evading detention, but the dismissal of his case, on February 24,1997, names the charge as evading arrest. The statutory section governing thetwo crimes is identical. See Tex. Penal Code � 38.04(a).
3. 3 We emphasize that we are not confronted with a judicial determination ofreasonable suspicion made in the context of a suppression hearing. Whenreviewing reasonable suspicion determinations made during suppressionhearings, we apply clear error review to the facts and view the facts in thelight most favorable to the prevailing party. See United States v. Nichols ,142 F.3d 857, 864-65 (5th Cir. 1998), cert. denied , 525 U.S. 1056 (1998). Here, we apply de novo review to the facts and view them in the light mostfavorable to the non-movant. See Rushing , 185 F.3d at 505.
4. 4 The lower court made much of the fact that Goodson weighed 260 pounds atthe time of the incident. As the district court stated during the summaryjudgment hearing, "[T]here's just not a whole lot of 260-pound guys walkingaround." But the BOLO did not direct Gaines to look for a 260 pound man, oreven a particularly large man. According to Gaines's affidavit, the BOLOmerely stated that the suspect was "heavy-set." Thus, even if Goodson's sizewas a uniquely distinguishing factor, it was not one that would give rise toreasonable suspicion based on the BOLO.
5. 5 Gaines says he first saw Goodson walking next to a car, which Gainesassumed that Goodson had just parked, on his way to The Frontier. But anyreasonable police officer, upon encountering Goodson again, still on foot, ahalf-mile from the car, traveling away from The Frontier and to theWhataburger, would realize that either this assumption was incorrect orGoodson was not the man described in the BOLO.
6. 6 The appellants argue that the similarity between the facts at hand andthose in United States v. Sanders warrant summary judgment in their favor. Wedisagree. In Sanders , a grocery store owner called the police complainingthat a black male, wearing a tan jacket and blue baseball cap, was armed andbehaving suspiciously on the premises. An officer arrived on the scene within3 minutes and saw approximately 10 people outside the store, includingSanders, who alone met the grocer's description. Sanders turned and beganwalking away as soon as the police arrived. The officer drew his weapon, tookcover, and told Sanders to stop. Another officer handcuffed Sanders and founda loaded gun in his pocket. See 994 F.2d at 201-02.
Here, unlike in Sanders , the officers confronted a man who matched thedescription of the suspect in only the vaguest of its terms; the BOLO did notsuggest that the suspect was armed; at least ten minutes elapsed between thetime when the officers first saw Goodson and when they stopped him, givingthem far more time to assess their options; and the street was empty,eliminating the danger of harming bystanders. Given the multitude ofdifference regarding the critical facts, Sanders does not mandate summaryjudgment on the appellants' behalf.
7. 7 Perez, the only other person on the scene, stood by his own patrol carduring the initial exchange and thus did not hear it.
8. 8 Gaines emphasizes that Goodson was both taller and heavier than Gainesor Perez, that the three stood on a deserted street, at night, and that Gainescould not tell if Goodson was armed. Yet none of these factors give rise toreasonable suspicion to frisk Goodson. Neither Gaines nor any other policeofficer could reasonably believe that he could frisk anyone, at night, on adeserted street, simply because the person was taller and heavier than thepolice officer.
9. 9 The appellants at no point argued that Gaines did not need reasonablesuspicion to stop Goodson and ask for his identification; rather, they haveconsistently relied on the argument that, despite the fact that Gaines hadreasonable suspicion, he first asked Goodson for identification. Therefore,they have waived any argument, on this appeal, that reasonable suspicion wasunnecessary to stop Goodson and ask for his identification. See Yohey v.Collins , 985 F.2d 222, 224-25 (5th Cir. 1993) ("Yohey has abandoned thesearguments by failing to argue them in the body of his brief.").
Showing posts with label It's personal. Show all posts
Showing posts with label It's personal. Show all posts
Thursday, June 25, 2009
Saturday, June 20, 2009
Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxe
loser had to cheat to win the election! cheater!
Thursday, January 24, 2008
You lie so much you believe yourself
• Holier Than Thou
(Hetfield/Ulrich)
No more
The crap rolls out your mouth again
Haven't changed, your brain is still gelatin
Little whispers circle around your head
Why don't you worry about yourself instead?
Who are you? Where ya been? Where ya from?
Gossip burning on the tip of your tongue
You lie so much you believe yourself
Judge not lest ye be judged yourself
Holier than thou
You are
Holier than thou
You are
You know not
Before you judge me, take a look at you
Can't you find something better to do?
Point the finger, slow to understand
Arrogance and ignorance go hand in hand
It's not who you are, it's who you know
Others' lives are the basis of your own
Burn your bridges and build them back with wealth
Judge not lest ye be judged yourself
Holier than thou
You are
Holier than thou
You are
You know not
Who the hell are you?
(Hetfield/Ulrich)
No more
The crap rolls out your mouth again
Haven't changed, your brain is still gelatin
Little whispers circle around your head
Why don't you worry about yourself instead?
Who are you? Where ya been? Where ya from?
Gossip burning on the tip of your tongue
You lie so much you believe yourself
Judge not lest ye be judged yourself
Holier than thou
You are
Holier than thou
You are
You know not
Before you judge me, take a look at you
Can't you find something better to do?
Point the finger, slow to understand
Arrogance and ignorance go hand in hand
It's not who you are, it's who you know
Others' lives are the basis of your own
Burn your bridges and build them back with wealth
Judge not lest ye be judged yourself
Holier than thou
You are
Holier than thou
You are
You know not
Who the hell are you?
Saturday, November 24, 2007
QUOTES ABOUT PROSECUTORS AND THE PROSECUTION FUNCTION
QUOTES ABOUT PROSECUTORS AND THE PROSECUTION FUNCTION
The following is a collection of cases involving a court’s discussion of the role of the prosecutor or the prosecution function. The Center will continually update this collection by adding and, as necessary, deleting cases. Please notify the Center if an error is discovered or if you are aware of additional cases that should be included.
National Rules and Standards
American Bar Association Model Rules of Professional Conduct
3.8 – Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”
American Bar Association Standards for Criminal Justice
3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.
National District Attorneys Association Prosecution Standards
1.1 Primary Responsibility
The primary responsibility of prosecution is to see that justice is accomplished.
Cases
Berger v. U.S., 295 U.S. 78, 88 (1935).
" The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
United States v. Wade, 388 U.S. 218, 256 (1967) (Justice White, concurring and dissenting).
“ Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain and present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty. The state has the obligation to present the evidence. He need not present any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth”.
In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992).
Prosecutors are “Shepherd[s] of justice.” When Government lawyer, with enormous resources at his or her disposal, abuses power and ignores ethical standards, he or she not only undermines public trust, but inflicts damage beyond calculation to system of justice. This alone compels the responsible and ethical exercise of this power.
Appeal of Nicely, 18 A. 737 (PA 1889)
“ The District Attorney is a quasi-judicial officer. He represents the commonwealth and the commonwealth demands no victims. It seeks justice only--equal and impartial justice-- and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial official, but becomes a heated partisan.”
Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415, 417 (1922).
“ [T]he duty of a prosecuting attorney is not to persecute, but to prosecute, and that he should endeavor to protect the innocent as well as to prosecute the guilty. He should always be interested in seeing that the truth and the right shall prevail….”
Fout v. State, 4 Tenn. 98 (1816)
“ He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, any more than those who deserve prosecution to escape; he is to pursue guilt; he to protect innocence; he is to judge the circumstances, and according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions and individual malevolence, when he can not use them for the advantage of the public; he is to lay hold of them where public justice, in sound discretions, requires it. …“Can these views be attained by leaving prosecutions to every attorney who will take a fee to prosecute? Does every one feel the responsibility imposed by the oath of the solicitor-general by his selection for the discharge of these duties, by the confidence of the public reposed in him, by a consciousness of the impartial duties he owes to society and his country?”
Hosford v. State, 525 So.2d 789, 792 (Miss. 1988).
" A fearless and earnest prosecuting attorney… is a bulwark to the peace, safety and happiness of the people. ….it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, …. It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury.…”
Hurd v. People, 25 Mich 405, 416 (1872).
“ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community”
In re Peasley, 90 P.3d 754 (Ariz. 2004).
Prosecutor’s interest in a criminal prosecution 'is not that it shall win a case, but that justice shall be done; courts generally recognize that the ethical rules impose higher ethical standards on prosecutors.
Jeschke v. State, 642 P.2d 1298, 1303 (Wyo. 1982).
Prosecutors must always keep in mind that duty is to seek justice, not merely to convict, “which is most certainly a difficult duty to be carried out carefully and cautiously.” See also Lafond v. State, 89 P.3d 324 (Wyo. 2004).
Lindsey v. State, 725 P.2d 649 (WY 1986), quoting Commentary On Prosecutorial Ethics, 13 Hastings Const. L.Q. 537-539 (1986).
" The difference in our roles as advocates derives from the degree of our authority and the disparity of our obligations. Defense counsel's legitimate and necessary goal is to achieve the best possible result for his client. His loyalty is to the individual client alone. The prosecutor, however, enters a courtroom to speak for the People and not just some of the People. The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name."
Montoya v. State, 971 P.2d 134, 137 (Wyo. 1998).
Ethical duty of a prosecutor is an extraordinary obligation that exceeds that imposed upon defense counsel.
People v. Greenwall, 22 N.E. 182 (NY 1889).
“ The district attorney, representing the majesty of the people, and having no responsibility, except fairly to discharge his duty, should not in his remarks, in the hearing of the jury, go beyond the bounds of reasonable moderation.”
People v. Kelley, 142 Cal. Rptr. 457, 75 Cal. App. 3d 672 (1977).
A Prosecutor is held to a higher standard than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.
State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000).
“ A prosecutor is a servant of the law and a representative of the people…. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.”
Other
Collier, Criticisms of the Bar, 1819.
“ Of all offices in the gift of the Crown, that of Attorney General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike: the rank is only fourth or fifth rate, and the manner in which it has been attained is always suspected, though sometimes unjustly: he is pretty sue to be charged with having ascended by the usual steps of political fawning and judicial servility, and after all he is only to be considered as the servant of servants—the curse of the Israelites. Lord Bacon says, that men in high stations are thrice servants—of the King, of the state and of the time—but the Attorney General is obliged to submit to a quadruple servitude; or at least in fact than in appearance. . .The most unpleasant consequence of all however appears to be, that the nation at large must look upon the Attorney General as sort of ministerial spy—an informer of rather higher rank than those who have recently become notorious; whose business is to ferret out and prosecute all who, either by their actions or writings, are endeavouring to displace the personages to whom he is indebted for his situation, or who are attempting to promote any reform in the system they support. Most of the ministry are engaged in great questions of foreign policy. . .and they leave the Attorney General to bear the brunt at home; his hand may be said to be against everybody, and everybody’s hand against him; he must fight all their domestic battles, and repel and punish all attacks whether political or personal”.
From a letter read at the retirement dinner of Manhattan District Attorney William Travers Jerome, New York Times, May 8, 1909, p.2.
“ [T]he prosecuting officer occupies a semi-judicial position; that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, it is equally his duty to protect the innocent and to refrain from prosecuting those against whom no sufficient or reasonable proofs can be found. In the course of his duties he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be produced.”
From “Checkmates”, episode 14, from Season Four of The Practice., Original Air Date February 13, 2003, Copyright ABC television, 20th Century Fox and David E. Kelley Productions.
“ The Speech” by character Richard (Assistant District Attorney): “There are heroes in this world. They are called district attorneys. They don't get to have clients, people who smile at them at the end of the trial, who look them in the eye and say "thank you." Nobody's there to appreciate the district attorney because we work for the state and our gratitude comes from knowing there's a tide out there, a tide the size of a tsunami coming out of a bottomless cess pool. A tide called crime, which if left unchecked will rob every American of his freedom. A tide which strips individuals of the privilege of being able to walk down a dark street or to take $20 out of an ATM machine without fear of being mugged. All Congress does is talk, but it's the district attorney who grabs his sword, who digs into the trenches and fights the fight, who dogs justice day after day after day without thanks, without so much as a simple pat on the back. But we do it, we do it, we do it because we are the crusaders, the last frontier of American justice, knowing if a man cannot feel safe he can never, never feel free.”
The District Attorney’s Oath from the radio and television serial Mr. District Attorney:
“ And it shall be my duty, not only to prosecute to the limit of the law all those charged with crimes within this country, but to defend with equal vigor the rights and privileges of all its citizens.”
The following is a collection of cases involving a court’s discussion of the role of the prosecutor or the prosecution function. The Center will continually update this collection by adding and, as necessary, deleting cases. Please notify the Center if an error is discovered or if you are aware of additional cases that should be included.
National Rules and Standards
American Bar Association Model Rules of Professional Conduct
3.8 – Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”
American Bar Association Standards for Criminal Justice
3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.
National District Attorneys Association Prosecution Standards
1.1 Primary Responsibility
The primary responsibility of prosecution is to see that justice is accomplished.
Cases
Berger v. U.S., 295 U.S. 78, 88 (1935).
" The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
United States v. Wade, 388 U.S. 218, 256 (1967) (Justice White, concurring and dissenting).
“ Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain and present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty. The state has the obligation to present the evidence. He need not present any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth”.
In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992).
Prosecutors are “Shepherd[s] of justice.” When Government lawyer, with enormous resources at his or her disposal, abuses power and ignores ethical standards, he or she not only undermines public trust, but inflicts damage beyond calculation to system of justice. This alone compels the responsible and ethical exercise of this power.
Appeal of Nicely, 18 A. 737 (PA 1889)
“ The District Attorney is a quasi-judicial officer. He represents the commonwealth and the commonwealth demands no victims. It seeks justice only--equal and impartial justice-- and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial official, but becomes a heated partisan.”
Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415, 417 (1922).
“ [T]he duty of a prosecuting attorney is not to persecute, but to prosecute, and that he should endeavor to protect the innocent as well as to prosecute the guilty. He should always be interested in seeing that the truth and the right shall prevail….”
Fout v. State, 4 Tenn. 98 (1816)
“ He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, any more than those who deserve prosecution to escape; he is to pursue guilt; he to protect innocence; he is to judge the circumstances, and according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions and individual malevolence, when he can not use them for the advantage of the public; he is to lay hold of them where public justice, in sound discretions, requires it. …“Can these views be attained by leaving prosecutions to every attorney who will take a fee to prosecute? Does every one feel the responsibility imposed by the oath of the solicitor-general by his selection for the discharge of these duties, by the confidence of the public reposed in him, by a consciousness of the impartial duties he owes to society and his country?”
Hosford v. State, 525 So.2d 789, 792 (Miss. 1988).
" A fearless and earnest prosecuting attorney… is a bulwark to the peace, safety and happiness of the people. ….it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, …. It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury.…”
Hurd v. People, 25 Mich 405, 416 (1872).
“ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community”
In re Peasley, 90 P.3d 754 (Ariz. 2004).
Prosecutor’s interest in a criminal prosecution 'is not that it shall win a case, but that justice shall be done; courts generally recognize that the ethical rules impose higher ethical standards on prosecutors.
Jeschke v. State, 642 P.2d 1298, 1303 (Wyo. 1982).
Prosecutors must always keep in mind that duty is to seek justice, not merely to convict, “which is most certainly a difficult duty to be carried out carefully and cautiously.” See also Lafond v. State, 89 P.3d 324 (Wyo. 2004).
Lindsey v. State, 725 P.2d 649 (WY 1986), quoting Commentary On Prosecutorial Ethics, 13 Hastings Const. L.Q. 537-539 (1986).
" The difference in our roles as advocates derives from the degree of our authority and the disparity of our obligations. Defense counsel's legitimate and necessary goal is to achieve the best possible result for his client. His loyalty is to the individual client alone. The prosecutor, however, enters a courtroom to speak for the People and not just some of the People. The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name."
Montoya v. State, 971 P.2d 134, 137 (Wyo. 1998).
Ethical duty of a prosecutor is an extraordinary obligation that exceeds that imposed upon defense counsel.
People v. Greenwall, 22 N.E. 182 (NY 1889).
“ The district attorney, representing the majesty of the people, and having no responsibility, except fairly to discharge his duty, should not in his remarks, in the hearing of the jury, go beyond the bounds of reasonable moderation.”
People v. Kelley, 142 Cal. Rptr. 457, 75 Cal. App. 3d 672 (1977).
A Prosecutor is held to a higher standard than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.
State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000).
“ A prosecutor is a servant of the law and a representative of the people…. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.”
Other
Collier, Criticisms of the Bar, 1819.
“ Of all offices in the gift of the Crown, that of Attorney General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike: the rank is only fourth or fifth rate, and the manner in which it has been attained is always suspected, though sometimes unjustly: he is pretty sue to be charged with having ascended by the usual steps of political fawning and judicial servility, and after all he is only to be considered as the servant of servants—the curse of the Israelites. Lord Bacon says, that men in high stations are thrice servants—of the King, of the state and of the time—but the Attorney General is obliged to submit to a quadruple servitude; or at least in fact than in appearance. . .The most unpleasant consequence of all however appears to be, that the nation at large must look upon the Attorney General as sort of ministerial spy—an informer of rather higher rank than those who have recently become notorious; whose business is to ferret out and prosecute all who, either by their actions or writings, are endeavouring to displace the personages to whom he is indebted for his situation, or who are attempting to promote any reform in the system they support. Most of the ministry are engaged in great questions of foreign policy. . .and they leave the Attorney General to bear the brunt at home; his hand may be said to be against everybody, and everybody’s hand against him; he must fight all their domestic battles, and repel and punish all attacks whether political or personal”.
From a letter read at the retirement dinner of Manhattan District Attorney William Travers Jerome, New York Times, May 8, 1909, p.2.
“ [T]he prosecuting officer occupies a semi-judicial position; that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, it is equally his duty to protect the innocent and to refrain from prosecuting those against whom no sufficient or reasonable proofs can be found. In the course of his duties he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be produced.”
From “Checkmates”, episode 14, from Season Four of The Practice., Original Air Date February 13, 2003, Copyright ABC television, 20th Century Fox and David E. Kelley Productions.
“ The Speech” by character Richard (Assistant District Attorney): “There are heroes in this world. They are called district attorneys. They don't get to have clients, people who smile at them at the end of the trial, who look them in the eye and say "thank you." Nobody's there to appreciate the district attorney because we work for the state and our gratitude comes from knowing there's a tide out there, a tide the size of a tsunami coming out of a bottomless cess pool. A tide called crime, which if left unchecked will rob every American of his freedom. A tide which strips individuals of the privilege of being able to walk down a dark street or to take $20 out of an ATM machine without fear of being mugged. All Congress does is talk, but it's the district attorney who grabs his sword, who digs into the trenches and fights the fight, who dogs justice day after day after day without thanks, without so much as a simple pat on the back. But we do it, we do it, we do it because we are the crusaders, the last frontier of American justice, knowing if a man cannot feel safe he can never, never feel free.”
The District Attorney’s Oath from the radio and television serial Mr. District Attorney:
“ And it shall be my duty, not only to prosecute to the limit of the law all those charged with crimes within this country, but to defend with equal vigor the rights and privileges of all its citizens.”
the truth is so hard
The fundamental right
This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions:
* In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".
* In France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says "Everyone is supposed innocent until having been declared guilty." and the preliminary article of the code of criminal procedure says "any suspected or prosecuted person is presumed to be innocent until their guilt has been established". The jurors' oath reiterates this assertion.
* Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th and 14th amendments. See also Coffin v. United States
* In the 1988 Brazilian constitution, article 5, section LVII states that "no one shall be considered guilty before the issuing of a final and unappealable penal sentence".
* The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.
* The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course.
[edit] The presumption of innocence in practice
Few systems have had, de jure, presumption of guilt. Accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures in ensuring that suspects are treated well and are offered good defense conditions. Typical infringements follow:
* In some systems, suspects may be held on long periods on remand, while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though he or she has not yet been sentenced. (see speedy trial)
* Courts may prefer the testimonies of persons of certain class, status, ethnicity, gender, or political standing over those of others, regardless of actual circumstances.
* In Europe and the Americas, prior to the French Revolution, it was common that justice could have suspects tortured so as to extract a confession from them. Even though the suspects were not, at this point, legally guilty, they were exposed to considerable pain, often with lasting physical consequences.
* Many public institutions, such as universities will punish members accused of felonies after they are indicted even if they have not been convicted. An example is the 2006 Duke University lacrosse team scandal where the accused were suspended even though they had not been convicted under a policy that punishes students who are merely indicted.
Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt was certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "allegedly" when referring to the criminal activity that the suspect is accused of.
More subtly, publishing of the prosecution's case without proper defense argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors (as an example, Perverted-Justice.com does so in order to shame suspected child molesters).
Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent via the test. Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.
Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use of a screen in sexual assault cases, which is set up in some jurisdictions to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice [1] [2]. However, where an accused is in fact innocent, this may send a message to the jury that the court has already accepted that in fact a crime was committed, which burden of proof has traditionally been on the prosecution, and which furthermore is a matter of fact that is not for the court to judge, but rather, for the jury. Not only this but also even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create.[3]
[edit] Differences between legal systems
This article or section may contain original research or unverified claims.
Please improve the article by adding references. See the talk page for details. (September 2007)
A common opinion held in countries based on common law is that in civil law or inquisitorial justice systems, the accused does not enjoy a presumption of innocence. This idea results from the fact that in most civil law nations, an investigating magistrate supervises police investigations. To common law countries with adversarial systems, the civil law criminal justice system appears to be hopelessly biased, since the judge should remain as impartial as possible. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in common law nations. Furthermore, in many civil law jursidictions (such as Germany and Austria), police investigations are supervised by a prosecutor, and a judge is involved only in cases where a warrant is required for purposes of the investigation for restrictive measures as, e.g., arrest, search and seizure, or wiretapping. Courts are often organized in a manner that it will not be the same judge who will determine the guilt or innocence of the suspect.
In the view of supporters of the inquisitorial system, the latter is less biased than the adversarial system, since the judges supervising cases are independent and bound by law to direct their enquiries both in favor or against the guilt of any suspect, compared to prosecutors in an adversarial system, who will, it is claimed, look only for evidence pointing to guilt and whose re-appointments may depend on the number of successful prosecutions that they have brought.
In particular, a court under the civil law system is not bound to a confession of guilt of an accused person. Thus, technically, the accused cannot plead "guilty". In quite a number of cases, courts had acquitted accused persons who had made a confession before the court, because it was found that the confession had not been credible. A common motive for false confessions is the aim of the accused to distract suspicion from a third person, to whom the confessing person maintains a personal relation. Supporters of the inquisitorial system maintain that the possibility of acquittal of a confessing accused is required to guarantee objective truth in criminal proceedings. Since criminal proceedings were mainly instituted in the public interest, the personal pleadings of the accused could not be formally decisive for the case. For this reason, the accused person is not regarded as a party in criminal proceedings, but rather as a participant - of course with own specific rights. The reluctance of legislators to accept deals between prosecution, the accused, and the court is also based on to the notion on public interest involved in criminal proceedings and the suspicion that such deals may tamper the finding of objective truth.
In general, civil law based justice systems, especially in Europe, avoid use of the term innocent, since it carries a moral charge separate from the phrase not guilty. It is argued a person who is found not guilty still cannot always claim to be innocent, e.g. if he/she has used lethal force in case of valid self-defence exerted against a mentally handicapped attacker with very low IQ. The wording is therefore delivered in a more formal and neutral manner, such that an accused is either declared guilty, not guilty for lack of a crime, not guilty due to lack of evidence, or not guilty due to lack of jurisdiction (in the case that a child or lunatic is accused). Such plain language is better suited for the predominantly written proceedings and less emotionally-charged nature of civil law trials.
Another common misunderstanding which leads to the assumption that the presumption of innocence is not applied in civil law systems might be based on the fact that many jurisdictions allow administrative bodies to fine minor misdemeanors, in particular traffic violations, without prior obtaining a court judgment and sometimes "on the spot". However, all procedural laws in all continental European countries which grant such rights to administrative bodies allow for a motion for independent judicial review of the case.
[edit] See also
* Blackstone's formulation
* Richard Brodhead
[edit] External links
* The History of Presumed Innocence
* The effects of presuming innocence
* Justice:Denied magazine reports on the miscarriages of justice that occur when the presumption of innocence is not respected.
* Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394
Retrieved from "http://en.wikipedia.org/wiki/Presumption_of_innocence"
Categories: Articles that may contain original research since September 2007 | Rights of the accused
This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions:
* In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".
* In France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says "Everyone is supposed innocent until having been declared guilty." and the preliminary article of the code of criminal procedure says "any suspected or prosecuted person is presumed to be innocent until their guilt has been established". The jurors' oath reiterates this assertion.
* Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th and 14th amendments. See also Coffin v. United States
* In the 1988 Brazilian constitution, article 5, section LVII states that "no one shall be considered guilty before the issuing of a final and unappealable penal sentence".
* The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.
* The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course.
[edit] The presumption of innocence in practice
Few systems have had, de jure, presumption of guilt. Accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures in ensuring that suspects are treated well and are offered good defense conditions. Typical infringements follow:
* In some systems, suspects may be held on long periods on remand, while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though he or she has not yet been sentenced. (see speedy trial)
* Courts may prefer the testimonies of persons of certain class, status, ethnicity, gender, or political standing over those of others, regardless of actual circumstances.
* In Europe and the Americas, prior to the French Revolution, it was common that justice could have suspects tortured so as to extract a confession from them. Even though the suspects were not, at this point, legally guilty, they were exposed to considerable pain, often with lasting physical consequences.
* Many public institutions, such as universities will punish members accused of felonies after they are indicted even if they have not been convicted. An example is the 2006 Duke University lacrosse team scandal where the accused were suspended even though they had not been convicted under a policy that punishes students who are merely indicted.
Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt was certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "allegedly" when referring to the criminal activity that the suspect is accused of.
More subtly, publishing of the prosecution's case without proper defense argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors (as an example, Perverted-Justice.com does so in order to shame suspected child molesters).
Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent via the test. Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.
Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use of a screen in sexual assault cases, which is set up in some jurisdictions to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice [1] [2]. However, where an accused is in fact innocent, this may send a message to the jury that the court has already accepted that in fact a crime was committed, which burden of proof has traditionally been on the prosecution, and which furthermore is a matter of fact that is not for the court to judge, but rather, for the jury. Not only this but also even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create.[3]
[edit] Differences between legal systems
This article or section may contain original research or unverified claims.
Please improve the article by adding references. See the talk page for details. (September 2007)
A common opinion held in countries based on common law is that in civil law or inquisitorial justice systems, the accused does not enjoy a presumption of innocence. This idea results from the fact that in most civil law nations, an investigating magistrate supervises police investigations. To common law countries with adversarial systems, the civil law criminal justice system appears to be hopelessly biased, since the judge should remain as impartial as possible. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in common law nations. Furthermore, in many civil law jursidictions (such as Germany and Austria), police investigations are supervised by a prosecutor, and a judge is involved only in cases where a warrant is required for purposes of the investigation for restrictive measures as, e.g., arrest, search and seizure, or wiretapping. Courts are often organized in a manner that it will not be the same judge who will determine the guilt or innocence of the suspect.
In the view of supporters of the inquisitorial system, the latter is less biased than the adversarial system, since the judges supervising cases are independent and bound by law to direct their enquiries both in favor or against the guilt of any suspect, compared to prosecutors in an adversarial system, who will, it is claimed, look only for evidence pointing to guilt and whose re-appointments may depend on the number of successful prosecutions that they have brought.
In particular, a court under the civil law system is not bound to a confession of guilt of an accused person. Thus, technically, the accused cannot plead "guilty". In quite a number of cases, courts had acquitted accused persons who had made a confession before the court, because it was found that the confession had not been credible. A common motive for false confessions is the aim of the accused to distract suspicion from a third person, to whom the confessing person maintains a personal relation. Supporters of the inquisitorial system maintain that the possibility of acquittal of a confessing accused is required to guarantee objective truth in criminal proceedings. Since criminal proceedings were mainly instituted in the public interest, the personal pleadings of the accused could not be formally decisive for the case. For this reason, the accused person is not regarded as a party in criminal proceedings, but rather as a participant - of course with own specific rights. The reluctance of legislators to accept deals between prosecution, the accused, and the court is also based on to the notion on public interest involved in criminal proceedings and the suspicion that such deals may tamper the finding of objective truth.
In general, civil law based justice systems, especially in Europe, avoid use of the term innocent, since it carries a moral charge separate from the phrase not guilty. It is argued a person who is found not guilty still cannot always claim to be innocent, e.g. if he/she has used lethal force in case of valid self-defence exerted against a mentally handicapped attacker with very low IQ. The wording is therefore delivered in a more formal and neutral manner, such that an accused is either declared guilty, not guilty for lack of a crime, not guilty due to lack of evidence, or not guilty due to lack of jurisdiction (in the case that a child or lunatic is accused). Such plain language is better suited for the predominantly written proceedings and less emotionally-charged nature of civil law trials.
Another common misunderstanding which leads to the assumption that the presumption of innocence is not applied in civil law systems might be based on the fact that many jurisdictions allow administrative bodies to fine minor misdemeanors, in particular traffic violations, without prior obtaining a court judgment and sometimes "on the spot". However, all procedural laws in all continental European countries which grant such rights to administrative bodies allow for a motion for independent judicial review of the case.
[edit] See also
* Blackstone's formulation
* Richard Brodhead
[edit] External links
* The History of Presumed Innocence
* The effects of presuming innocence
* Justice:Denied magazine reports on the miscarriages of justice that occur when the presumption of innocence is not respected.
* Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394
Retrieved from "http://en.wikipedia.org/wiki/Presumption_of_innocence"
Categories: Articles that may contain original research since September 2007 | Rights of the accused
Thursday, November 22, 2007
read it and weep
N THE 291st CRIMINAL DISTRICT COURT
DALLAS COUNTY, TEXAS
THE STATE OF TEXAS
v.
DAMONS LOUISE
CRIMINAL NUMBER: F0283772
F0202033
DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.
A. SPECIFIC BRADY REQUESTS
The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:
1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.
2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.
3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.
4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.
5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:
(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;
(b) prior convictions, arrests, misconduct, wrongs or bad acts;
(c) prior or subsequent inconsistent statements;
(d) instructions not to discuss the case with defense counsel;
(e) the mental, emotional, and physical history of Defendant, or any witness,
(f) the use of any lie detector or polygraph tests on any witness and the results;
(g) the use of narcotics or other controlled substances or alcohol;
(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;
(i) partiality, prejudice, bias, motive, interest or corruption;
(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;
(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;
(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;
(m) a threat to prosecute if cooperation was not forthcoming;
(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;
(o) the immigration status of any potential government witness or informant who is not a United States citizen;
(p) any probation, parole, deferred adjudication, or deferred government or custodial status;
(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;
B. ARGUMENT
1. Disclosure of Materials.
The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.
Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.
All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.
Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.
The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).
2. Prompt Disclosure.
Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:
If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.
United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).
3. Request for Thorough Search.
The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).
C. PRAYER
For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.
Dated: May 2, 2006 Respectfully submitted,
David Finn, P.C.
By:
David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)
Counsel for Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:
Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas
David Finn
ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.
SO ORDERED this ________ day of _________________, 2003.
__________________________________________
JUDGE SUSAN HAWK
DALLAS COUNTY, TEXAS
THE STATE OF TEXAS
v.
DAMONS LOUISE
CRIMINAL NUMBER: F0283772
F0202033
DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.
A. SPECIFIC BRADY REQUESTS
The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:
1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.
2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.
3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.
4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.
5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:
(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;
(b) prior convictions, arrests, misconduct, wrongs or bad acts;
(c) prior or subsequent inconsistent statements;
(d) instructions not to discuss the case with defense counsel;
(e) the mental, emotional, and physical history of Defendant, or any witness,
(f) the use of any lie detector or polygraph tests on any witness and the results;
(g) the use of narcotics or other controlled substances or alcohol;
(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;
(i) partiality, prejudice, bias, motive, interest or corruption;
(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;
(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;
(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;
(m) a threat to prosecute if cooperation was not forthcoming;
(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;
(o) the immigration status of any potential government witness or informant who is not a United States citizen;
(p) any probation, parole, deferred adjudication, or deferred government or custodial status;
(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;
B. ARGUMENT
1. Disclosure of Materials.
The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.
Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.
All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.
Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.
The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).
2. Prompt Disclosure.
Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:
If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.
United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).
3. Request for Thorough Search.
The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).
C. PRAYER
For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.
Dated: May 2, 2006 Respectfully submitted,
David Finn, P.C.
By:
David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)
Counsel for Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:
Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas
David Finn
ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.
SO ORDERED this ________ day of _________________, 2003.
__________________________________________
JUDGE SUSAN HAWK
Saturday, November 03, 2007
"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered.", DUH............
August 21, 2004
"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered." People v. Rubio, no. F043941 (Cal.Ct.App. (5th Dist.) Aug. 18, 2004).
Holding: "We agree with Rubio’s argument that the 2003 version of CALJIC No. 7.20 incorrectly defines materiality. This instruction correctly informs the jury that a false statement must be material before the defendant can be found guilty of perjury. The instruction then defines a false material statement as one that 'could influence the outcome of the proceedings in which it is uttered.' We think the correct definition of a false material statement is one that 'could probably have influenced the outcome' of the proceeding in which it is uttered. (People v. Pierce (1967) 66 Cal.2d 53, 61.)"
The court rejected the argument that the error was structural, and affirmed, finding it harmless under Chapman.
Panel: Vartarbedian, Cornell, Dawson.
Posted by Jonathan Soglin at 03:12 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
July 19, 2004
Two More Unanimous Cal. Supreme Court Decisions Today.
People v. Griffin, no. S029174 (death sentence affirmed after second penalty phase, which followed first appeal in which Court had remanded for new penalty phase because of error in giving Briggs instruction). (Author: George; unanimous.)
Kulshreshta v. First Union, no. S115654 (declarations signed under penalty of perjury outside CA do not satisfy Cal. Code Civ. Proc. sec. 2015.5, and are not admissible in summary judgment and other authorized proceedings, when contents are not certified as true “under the laws of the State of California”). (Author: Baxter; unanimous.)
June: 11 of 13 opinions unanimous.
July: 9 of 10 opinions unanimous.
Posted by Jonathan Soglin at 08:40 PM in Death Penalty, Perjury/False Statements | Permalink | Comments (0) | TrackBack
March 31, 2004
Fishy Fishing Filing May Result in False Instrument Prosecution.
Case: People v. Powers, no. A103622 (Cal.Ct.App. (1st Dist., Div. 4) Mar. 30, 2004)
Proceeding: Prosecutor's appeal of orders sustaining a demurrer to the complaint and denying the a motion to reinstate the complaint.
Holding: Reversed. A fishing activity report required to be filed under the Fish and Game Code and Department regulations is an instrument within the meaning of Penal Code section 115 and a fishing boat operator who files a false fishing activity report with the Department may be prosecuted under section 115 for knowingly offering a false instrument to be filed with a state public office.
Authoring Justice: Patricia K. Sepulveda
Posted by Jonathan Soglin at 10:27 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered." People v. Rubio, no. F043941 (Cal.Ct.App. (5th Dist.) Aug. 18, 2004).
Holding: "We agree with Rubio’s argument that the 2003 version of CALJIC No. 7.20 incorrectly defines materiality. This instruction correctly informs the jury that a false statement must be material before the defendant can be found guilty of perjury. The instruction then defines a false material statement as one that 'could influence the outcome of the proceedings in which it is uttered.' We think the correct definition of a false material statement is one that 'could probably have influenced the outcome' of the proceeding in which it is uttered. (People v. Pierce (1967) 66 Cal.2d 53, 61.)"
The court rejected the argument that the error was structural, and affirmed, finding it harmless under Chapman.
Panel: Vartarbedian, Cornell, Dawson.
Posted by Jonathan Soglin at 03:12 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
July 19, 2004
Two More Unanimous Cal. Supreme Court Decisions Today.
People v. Griffin, no. S029174 (death sentence affirmed after second penalty phase, which followed first appeal in which Court had remanded for new penalty phase because of error in giving Briggs instruction). (Author: George; unanimous.)
Kulshreshta v. First Union, no. S115654 (declarations signed under penalty of perjury outside CA do not satisfy Cal. Code Civ. Proc. sec. 2015.5, and are not admissible in summary judgment and other authorized proceedings, when contents are not certified as true “under the laws of the State of California”). (Author: Baxter; unanimous.)
June: 11 of 13 opinions unanimous.
July: 9 of 10 opinions unanimous.
Posted by Jonathan Soglin at 08:40 PM in Death Penalty, Perjury/False Statements | Permalink | Comments (0) | TrackBack
March 31, 2004
Fishy Fishing Filing May Result in False Instrument Prosecution.
Case: People v. Powers, no. A103622 (Cal.Ct.App. (1st Dist., Div. 4) Mar. 30, 2004)
Proceeding: Prosecutor's appeal of orders sustaining a demurrer to the complaint and denying the a motion to reinstate the complaint.
Holding: Reversed. A fishing activity report required to be filed under the Fish and Game Code and Department regulations is an instrument within the meaning of Penal Code section 115 and a fishing boat operator who files a false fishing activity report with the Department may be prosecuted under section 115 for knowingly offering a false instrument to be filed with a state public office.
Authoring Justice: Patricia K. Sepulveda
Posted by Jonathan Soglin at 10:27 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
Friday, October 26, 2007
a person of good intent should not be harmed, and one should treat others as one would like to be treated..ever heard about it?.
Natural justice~ Filed Fraudulent evidence and beared false witness against thy neighbor~ I want the originals
From Wikipedia, the free encyclopedia
• Find out more about navigating Wikipedia and finding information •
Jump to: navigation, search
Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law (latin: jus naturale) which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, particularly the UK and Australia.[1]
According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator. The assertion in the United States' Declaration of Independence, "We hold these truths to be self-evident," expresses some of this sentiment. The rules or principles of natural justice are now regularly applied by the courts in both common law and Roman law jurisdictions. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.[2]
Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:
* A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).
* A person making a decision should declare any personal interest they may have in the proceedings.
* A person who makes a decision should be unbiased and act in good faith. He therefore can not be one of the parties in the case, or have an interest in the outcome. This is expressed in the latin maxim, nemo judex in sua causa: "no man is permitted to be judge in his own cause".
* Proceedings should be conducted so they are fair to all the parties - expressed in the latin maxim audi alteram partem: "let the other side be heard".
* Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.
* A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.
* Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.[3]
[edit] Notes and references
1. ^ See, e.g., "Natural Justice and Procedural Fairness" (.pdf file)
2. ^ Michael Brogan,Wayne Gleeson, Tony Foley, Veronica Siow and Therese Ejsak, Heinemann Legal Studies p12-13
3. ^ Ken Binmore, Natural Justice, Oxford University Press, 2005 [1]
[edit] See also
From Wikipedia, the free encyclopedia
• Find out more about navigating Wikipedia and finding information •
Jump to: navigation, search
Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law (latin: jus naturale) which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, particularly the UK and Australia.[1]
According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator. The assertion in the United States' Declaration of Independence, "We hold these truths to be self-evident," expresses some of this sentiment. The rules or principles of natural justice are now regularly applied by the courts in both common law and Roman law jurisdictions. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.[2]
Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:
* A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).
* A person making a decision should declare any personal interest they may have in the proceedings.
* A person who makes a decision should be unbiased and act in good faith. He therefore can not be one of the parties in the case, or have an interest in the outcome. This is expressed in the latin maxim, nemo judex in sua causa: "no man is permitted to be judge in his own cause".
* Proceedings should be conducted so they are fair to all the parties - expressed in the latin maxim audi alteram partem: "let the other side be heard".
* Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.
* A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.
* Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.[3]
[edit] Notes and references
1. ^ See, e.g., "Natural Justice and Procedural Fairness" (.pdf file)
2. ^ Michael Brogan,Wayne Gleeson, Tony Foley, Veronica Siow and Therese Ejsak, Heinemann Legal Studies p12-13
3. ^ Ken Binmore, Natural Justice, Oxford University Press, 2005 [1]
[edit] See also
Tuesday, October 16, 2007
"I need to bring on one more attorney to make sure the cases get heard in a timely manner and to reduce the backlog of cases for me and everybody ....
...else."
Like who? Hubert is a wannabe fine print fuck you over because you did not read the part where it states "you will owe him your first born child" and that "if you purchase a brand new car and you drive it off the lot and it blows up, that you are still going to have to pay for it."
]
from Archives: Kingsville Journal
*
Historic Appointment
Kleberg, Kenedy get their own DA
Gov. Perry gives Hubert the appointment
Georgia Wingate Thompson, The Kingsville Journal
One of Kleberg County's founding families, the Huberts, already have their names written in area history books and another chapter has been added with the appointment of local attorney John T. Hubert as the first district attorney of Kleberg and Kenedy counties.
Pursuant to Senate Bill 1951 of the 80th Legislature, which created a district attorney's office for both counties, Gov. Rick Perry gave the nod to Hubert as first district attorney of Kleberg and Kenedy counties, to serve a term until the next general election. Other applicants for the job included Kleberg County Attorney Alfred Isassi and deputy district attorney Ida Trevino.
Carlos Valdez has served as district attorney for not only Nueces County but also Kleberg and Kenedy counties since being elected in 1992. Hubert said Valdez has a vested interest in Kleberg and Kenedy counties, the Kingsville community and will continue to be helpful.
According to a memo from the office of Local Government Assistance and Economic Development Texas Comptroller of Public Accounts, the state will provide $33,630 for the new office's expenses and an annual travel allowance of $3,500. The annual salary and benefits for the district attorney is $125,000 and $19,684 respectively.
Hubert was sworn-in during a small private ceremony in Austin last Sept. 1 by a Texas Supreme Court Justice. He immediately started to work by going to the office Sunday and said he considers the job to be full-time and after hours, too.
"I'm totally focused on this job and wanted to start off on a good and positive note and understand how things work," said Hubert. "There are a lot of good things in the office that don't need changed."
But this also means that Hubert will be taken away from his young family, Ezekiel, 4, and Isabel, 23-months, and wife, Amy. Hubert says he can work around that situation.
"Well, I'll just have to get up earlier and fix breakfast for the kids because I like to do that," Hubert said. "I don't do it every day, but I do like to do it."
I thought he worked in CC? No, he don't have a JOB in Iraq, never did.
As every GI I know, automatically wakes up early and would never say something as stupid as
"Well, I'll just have to get up earlier and fix breakfast for the kids because I like to do that," Hubert said. "I don't do it every day, but I do like to do it."
He and his are nothing but racist haters who convict who hegemony Hitler complex brethren agree.
Numerous family members, friends, law enforcement officers, community leaders, elected officials and friends attended Hubert's swearing in ceremony Thursday afternoon by 105th District Judge Manuel Banales.
Banales told the crowd that it was a great day for Kleberg and Kenedy counties and that both counties are fortunate to have someone like John Hubert.
"This first D.A. for both counties is by the will of the people and cooperation of the legislature and governor that we have a competent and able D.A.," Banales said.
Offering his remarks., Kleberg County Judge Pete De La Garza said the appointment of a D.A. was long overdue.
"It's been a long road and we've come a long way," said De La Garza. "My only regret is that your dad is not here today. He would be so proud of you."
Hubert's father, Dr. Pat Hubert, D.V.M., died suddenly Dec. 2, 2006.
When I grow up
I want to be…
Growing up in the southern part of Kleberg County, one of the late Dr. Pat and Goldia's nine children, Hubert said he didn't have political aspirations, but rather thought he'd like be a police officer, soldier or a priest. He does work in law enforcement and did become a soldier.
In the Army, Hubert led a tank platoon into combat in the First Gulf War, Desert Storm. Most recently he served in Iraq as a Civil Affairs Team Leader. As a major in the United States Army Reserves, Hubert currently serves as the Commander of HHC 451st Civil Affairs Battalion in Pasadena, Texas. Hubert recently worked as a solo practitioner in Kingsville and as an associate with Hornblower, Manning, Ward, Harrison, Vencia and Rodriguez P.C. in Corpus Christi, where he was licensed to practice in the Texas Southern, Eastern and Northern Federal District Courts.
He formerly served as an assistant district attorney of Nueces County from 1999 to 2000. In 2000 he was transferred to Kingsville upon his request and worked as an assistant district attorney and eventually the managing assistant district attorney of Kleberg and Kenedy counties until 2004.
Elected officials enthused
over the appointment
In being appointed as the county's first district attorney Hubert is well aware that he's making history and plans to do the job right.
"This is the first time these counties (Kleberg and Kenedy) have had a district attorney of their own and we can now create a more responsible legal system," Hubert said. "It enables the district attorney to work closer with law enforcement than ever before and I'm looking forward to working with these guys."
Kleberg County Judge Pete De La Garza said he thought Hubert would do an excellent job and said he, along with State Sen. Eddie Lucio, had been in favor of Hubert's appointment by the governor.
"I think his appointment was the wise thing to do," De La Garza said. "I supported him all the way and Sen. Eddie Lucio was also instrumental in his appointment."
Kleberg County's top law enforcement official, Sheriff Ed Mata, was enthusiastic over the prospect of working closely with Hubert in helping solve the local jail's overcrowding problems.
"I love the man!" Mata said. "He knows the situation at the jail and I think that together we can work together to reduce inmate population and use this facility as it was intended."
Mata said he called and wished Hubert well and sent him a prayer. For his part, Hubert says that he is just one member of the law enforcement family and is looking forward to working with area officers.
"These guys are extremely dedicated," Hubert said. "If you go to Corpus Christi they are doing the same job for more money, but our guys do it for less because they live here, love their neighborhoods and want their kids to grow up here. They are willing to do what is best for the community."
Future plans
Hubert says he is excited about the opportunity to work and make a difference in the community where he grew up and is focused on the challenges of setting up a new office, and he hopes to work with other law enforcement to make the community a safer place.
"Right now I'll be working with less attorneys than before," Hubert said. "I need to bring on one more attorney to make sure the cases get heard in a timely manner and to reduce the backlog of cases for me and everybody else."
That is why he is a waste.......he is not going to risk anything.... "one more attorney to make sure the cases get heard"
Lord knows he is a backlog of malicious prosecuting, abuse of offics and worst of all violating his JOB as a human being bearing false witness against his neighbor. But in order to see that .....ask the local A&I recruiters.
Hubert has high praise for the office's talented secretaries, who, he said, allow the attorneys to do their jobs.
"We are also trying to approach the office in a regional manner by talking with other attorneys to help us with the backlog," Hubert said.
As far as a political future Hubert says he will definitely run for district attorney when it is on the ballot.
"I don't know what the future holds, but I could see doing this job forever," Hubert said. "I am happy, proud and honored to be chosen to represent the State of Texas."
Like who? Hubert is a wannabe fine print fuck you over because you did not read the part where it states "you will owe him your first born child" and that "if you purchase a brand new car and you drive it off the lot and it blows up, that you are still going to have to pay for it."
]
from Archives: Kingsville Journal
*
Historic Appointment
Kleberg, Kenedy get their own DA
Gov. Perry gives Hubert the appointment
Georgia Wingate Thompson, The Kingsville Journal
One of Kleberg County's founding families, the Huberts, already have their names written in area history books and another chapter has been added with the appointment of local attorney John T. Hubert as the first district attorney of Kleberg and Kenedy counties.
Pursuant to Senate Bill 1951 of the 80th Legislature, which created a district attorney's office for both counties, Gov. Rick Perry gave the nod to Hubert as first district attorney of Kleberg and Kenedy counties, to serve a term until the next general election. Other applicants for the job included Kleberg County Attorney Alfred Isassi and deputy district attorney Ida Trevino.
Carlos Valdez has served as district attorney for not only Nueces County but also Kleberg and Kenedy counties since being elected in 1992. Hubert said Valdez has a vested interest in Kleberg and Kenedy counties, the Kingsville community and will continue to be helpful.
According to a memo from the office of Local Government Assistance and Economic Development Texas Comptroller of Public Accounts, the state will provide $33,630 for the new office's expenses and an annual travel allowance of $3,500. The annual salary and benefits for the district attorney is $125,000 and $19,684 respectively.
Hubert was sworn-in during a small private ceremony in Austin last Sept. 1 by a Texas Supreme Court Justice. He immediately started to work by going to the office Sunday and said he considers the job to be full-time and after hours, too.
"I'm totally focused on this job and wanted to start off on a good and positive note and understand how things work," said Hubert. "There are a lot of good things in the office that don't need changed."
But this also means that Hubert will be taken away from his young family, Ezekiel, 4, and Isabel, 23-months, and wife, Amy. Hubert says he can work around that situation.
"Well, I'll just have to get up earlier and fix breakfast for the kids because I like to do that," Hubert said. "I don't do it every day, but I do like to do it."
I thought he worked in CC? No, he don't have a JOB in Iraq, never did.
As every GI I know, automatically wakes up early and would never say something as stupid as
"Well, I'll just have to get up earlier and fix breakfast for the kids because I like to do that," Hubert said. "I don't do it every day, but I do like to do it."
He and his are nothing but racist haters who convict who hegemony Hitler complex brethren agree.
Numerous family members, friends, law enforcement officers, community leaders, elected officials and friends attended Hubert's swearing in ceremony Thursday afternoon by 105th District Judge Manuel Banales.
Banales told the crowd that it was a great day for Kleberg and Kenedy counties and that both counties are fortunate to have someone like John Hubert.
"This first D.A. for both counties is by the will of the people and cooperation of the legislature and governor that we have a competent and able D.A.," Banales said.
Offering his remarks., Kleberg County Judge Pete De La Garza said the appointment of a D.A. was long overdue.
"It's been a long road and we've come a long way," said De La Garza. "My only regret is that your dad is not here today. He would be so proud of you."
Hubert's father, Dr. Pat Hubert, D.V.M., died suddenly Dec. 2, 2006.
When I grow up
I want to be…
Growing up in the southern part of Kleberg County, one of the late Dr. Pat and Goldia's nine children, Hubert said he didn't have political aspirations, but rather thought he'd like be a police officer, soldier or a priest. He does work in law enforcement and did become a soldier.
In the Army, Hubert led a tank platoon into combat in the First Gulf War, Desert Storm. Most recently he served in Iraq as a Civil Affairs Team Leader. As a major in the United States Army Reserves, Hubert currently serves as the Commander of HHC 451st Civil Affairs Battalion in Pasadena, Texas. Hubert recently worked as a solo practitioner in Kingsville and as an associate with Hornblower, Manning, Ward, Harrison, Vencia and Rodriguez P.C. in Corpus Christi, where he was licensed to practice in the Texas Southern, Eastern and Northern Federal District Courts.
He formerly served as an assistant district attorney of Nueces County from 1999 to 2000. In 2000 he was transferred to Kingsville upon his request and worked as an assistant district attorney and eventually the managing assistant district attorney of Kleberg and Kenedy counties until 2004.
Elected officials enthused
over the appointment
In being appointed as the county's first district attorney Hubert is well aware that he's making history and plans to do the job right.
"This is the first time these counties (Kleberg and Kenedy) have had a district attorney of their own and we can now create a more responsible legal system," Hubert said. "It enables the district attorney to work closer with law enforcement than ever before and I'm looking forward to working with these guys."
Kleberg County Judge Pete De La Garza said he thought Hubert would do an excellent job and said he, along with State Sen. Eddie Lucio, had been in favor of Hubert's appointment by the governor.
"I think his appointment was the wise thing to do," De La Garza said. "I supported him all the way and Sen. Eddie Lucio was also instrumental in his appointment."
Kleberg County's top law enforcement official, Sheriff Ed Mata, was enthusiastic over the prospect of working closely with Hubert in helping solve the local jail's overcrowding problems.
"I love the man!" Mata said. "He knows the situation at the jail and I think that together we can work together to reduce inmate population and use this facility as it was intended."
Mata said he called and wished Hubert well and sent him a prayer. For his part, Hubert says that he is just one member of the law enforcement family and is looking forward to working with area officers.
"These guys are extremely dedicated," Hubert said. "If you go to Corpus Christi they are doing the same job for more money, but our guys do it for less because they live here, love their neighborhoods and want their kids to grow up here. They are willing to do what is best for the community."
Future plans
Hubert says he is excited about the opportunity to work and make a difference in the community where he grew up and is focused on the challenges of setting up a new office, and he hopes to work with other law enforcement to make the community a safer place.
"Right now I'll be working with less attorneys than before," Hubert said. "I need to bring on one more attorney to make sure the cases get heard in a timely manner and to reduce the backlog of cases for me and everybody else."
That is why he is a waste.......he is not going to risk anything.... "one more attorney to make sure the cases get heard"
Lord knows he is a backlog of malicious prosecuting, abuse of offics and worst of all violating his JOB as a human being bearing false witness against his neighbor. But in order to see that .....ask the local A&I recruiters.
Hubert has high praise for the office's talented secretaries, who, he said, allow the attorneys to do their jobs.
"We are also trying to approach the office in a regional manner by talking with other attorneys to help us with the backlog," Hubert said.
As far as a political future Hubert says he will definitely run for district attorney when it is on the ballot.
"I don't know what the future holds, but I could see doing this job forever," Hubert said. "I am happy, proud and honored to be chosen to represent the State of Texas."
Wednesday, October 03, 2007
John John like Junior John both "confession of error" experts to protect their crimes.......
John John like Junior John both "confession of error" experts to protect their crimes
Posted on September 9, 2007 at 03:14:56 AM by d1
An issue of fairness
The discovery process is central to the American concept of a fair trial.
"Society wins not only when the guilty are convicted but when criminal trials are fair," wrote U.S. Supreme Court Justice William O. Douglas in 1963.
"Our system of the administration of justice suffers when any accused is treated unfairly."
His words were at the core of the Supreme Court's Brady vs. Maryland opinion, which set the standard for discovery rules in this country.
John L. Brady and an accomplice were convicted of murdering a man during a robbery. Both were sentenced to death.
But during Brady's trial, prosecutors withheld a police report that had been requested by defense attorneys, in which Brady's accomplice confessed to pulling the trigger.
The court ruled that by withholding the evidence, the prosecutor violated Brady's rights under the equal protection clause of the 14th Amendment to the Constitution.
Even if such information is withheld unintentionally, the court said, a defendant might still be entitled to a new trial or a new hearing on his sentence.
Brady's case was remanded for re-sentencing and he was spared the death penalty and given life in prison.
But as with many Supreme Court rulings, a clear statement of principles can become fuzzy in its application. To rectify discovery violations, the Supreme Court adopted a test that begins and ends with one basic premise: A conviction should be reversed only if the verdict would have been different had the discovery information withheld by prosecutors been known at the trial. Otherwise, the discovery violation is "harmless error" - and the original court verdict should stand.
In its investigation, the Post-Gazette found that the test has evolved into a devious calculation by many federal prosecutors: How much favorable evidence can be withheld without risking a reversal on appeal?
Rather than abide by the Supreme Court's admonition that their goal should be to ensure a fair trial, many prosecutors try to figure just how much they can cheat. Ignoring discovery rules improves the chances of a prosecutor winning a conviction with little risk of penalty.
Bennett L. Gershman, a former New York state prosecutor, wrote a legal textbook focusing on the methods and motivations of prosecutorial misconduct. The prime motivator: "Prosecutors want to win."
"Brady violations account for more miscarriages of justice than any other violation," said Bennett L. Gershman, a former New York state prosecutor and now a Pace University of New York law professor.
Gershman wrote "Prosecutorial Misconduct" in 1997 and has explored discovery violations and the motives behind them.
"Prosecutors want to win," he said. "Some believe the defendant is so guilty that any information that contradicts the guilt can't be trustworthy, so they believe they don't have any obligation to turn over untrustworthy material while telling themselves they are being honest."
The double whammy for defendants, of course, is that there's no guarantee that favorable evidence, once hidden by prosecutors, will ever be revealed.
"People have been sent to prison for many, many years before they find that [prosecutors knew of] exculpatory evidence, but that's the built-in contradiction," Gershman said.
"If the information is hidden, how do you find it?" Gershman asked. "How do you get it to make a claim? Much of this information will never see the light of day, even if it may be critical in proving the defendant's innocence."
That hasn't always been the way federal prosecutors operated.
Replies:
Posted on September 9, 2007 at 03:14:56 AM by d1
An issue of fairness
The discovery process is central to the American concept of a fair trial.
"Society wins not only when the guilty are convicted but when criminal trials are fair," wrote U.S. Supreme Court Justice William O. Douglas in 1963.
"Our system of the administration of justice suffers when any accused is treated unfairly."
His words were at the core of the Supreme Court's Brady vs. Maryland opinion, which set the standard for discovery rules in this country.
John L. Brady and an accomplice were convicted of murdering a man during a robbery. Both were sentenced to death.
But during Brady's trial, prosecutors withheld a police report that had been requested by defense attorneys, in which Brady's accomplice confessed to pulling the trigger.
The court ruled that by withholding the evidence, the prosecutor violated Brady's rights under the equal protection clause of the 14th Amendment to the Constitution.
Even if such information is withheld unintentionally, the court said, a defendant might still be entitled to a new trial or a new hearing on his sentence.
Brady's case was remanded for re-sentencing and he was spared the death penalty and given life in prison.
But as with many Supreme Court rulings, a clear statement of principles can become fuzzy in its application. To rectify discovery violations, the Supreme Court adopted a test that begins and ends with one basic premise: A conviction should be reversed only if the verdict would have been different had the discovery information withheld by prosecutors been known at the trial. Otherwise, the discovery violation is "harmless error" - and the original court verdict should stand.
In its investigation, the Post-Gazette found that the test has evolved into a devious calculation by many federal prosecutors: How much favorable evidence can be withheld without risking a reversal on appeal?
Rather than abide by the Supreme Court's admonition that their goal should be to ensure a fair trial, many prosecutors try to figure just how much they can cheat. Ignoring discovery rules improves the chances of a prosecutor winning a conviction with little risk of penalty.
Bennett L. Gershman, a former New York state prosecutor, wrote a legal textbook focusing on the methods and motivations of prosecutorial misconduct. The prime motivator: "Prosecutors want to win."
"Brady violations account for more miscarriages of justice than any other violation," said Bennett L. Gershman, a former New York state prosecutor and now a Pace University of New York law professor.
Gershman wrote "Prosecutorial Misconduct" in 1997 and has explored discovery violations and the motives behind them.
"Prosecutors want to win," he said. "Some believe the defendant is so guilty that any information that contradicts the guilt can't be trustworthy, so they believe they don't have any obligation to turn over untrustworthy material while telling themselves they are being honest."
The double whammy for defendants, of course, is that there's no guarantee that favorable evidence, once hidden by prosecutors, will ever be revealed.
"People have been sent to prison for many, many years before they find that [prosecutors knew of] exculpatory evidence, but that's the built-in contradiction," Gershman said.
"If the information is hidden, how do you find it?" Gershman asked. "How do you get it to make a claim? Much of this information will never see the light of day, even if it may be critical in proving the defendant's innocence."
That hasn't always been the way federal prosecutors operated.
Replies:
Monday, October 01, 2007
Since when has "that's not really evidence." ever stopped this loser? watt he is really saying is "there is nothing in it for me".......right~ it's...
Local
Jails rethink commissary contracts
By Denise Malan (Contact)
Monday, October 1, 2007
CORPUS CHRISTI — Two local sheriffs are distancing themselves from their predecessors' decisions to award jail commissary contracts to a company involved in a criminal investigation in Bexar County.
Kleberg County Sheriff Ed Mata said last week officials are researching ways to end that county's five-year agreement with the company, Premier Management Enterprises. Nueces County Sheriff Jim Kaelin gave Premier a 30-day termination notice on Jan. 24, after taking office.
Former Bexar County Sheriff Ralph Lopez resigned and pleaded no contest to accepting a trip to Costa Rica from the principals of Premier. The Lafayette, La., based company runs the county jail commissary.
Neither Kaelin nor Mata has documentation corroborating what their staffs have told them -- that their predecessors, Larry Olivarez of Nueces County and Tony Gonzalez of Kleberg County, went on that August 2005 trip. Neither Gonzalez nor Olivarez has responded to requests for comment.
There is no known investigation in Nueces or Kleberg counties.
"At this point no case has been submitted to me," Kleberg County District Attorney John Hubert said. "If something is submitted to me, I take every case on its own merits. I don't have any information other than what I've read in the papers and -- no offense to anybody -- that's not really evidence."
Nueces County District Attorney Carlos Valdez was out of the office late last week, and the Bexar County District Attorney's Office did not respond. The FBI would not comment.
Olivarez signed a contract with Premier five months after the Costa Rica trip involving the former Bexar County sheriff. Gonzalez signed a contract in September 2004.
Premier's principals, Patrick and Michael LeBlanc, also own LCS Correctional Services, which is building a private prison to house federal inmates near Robstown. A receptionist at Premier referred all questions to the company's chief executive officer, Chris Burch, who did not respond.
An attorney for the company, Tonya Webber of Corpus Christi, said her clients have not been commenting because of the open investigation in Bexar County. She said she would check with her clients for comment on the local contracts but did not respond after that.
Kaelin and Mata both cited performance issues with Premier as reasons for terminating the contract. Mata said the Bexar investigation also played a part.
"What I'm trying to do is just protect this county," Mata said. "I'm not trying to pass any judgment if something was done wrong."
Kaelin said his decision was based solely on Premier's performance. He met with Premier officials about complaints before ending the agreement, according to correspondence the Caller-Times obtained under the Texas Public Information Act. Kaelin and Premier also tangled over payments.
A new contract, with Keefe Supply, also is potentially more lucrative for the county. The Premier contract gave the county $130,000 or 31 percent of net sales, whichever was greater. The new contract gives a minimum of 39 percent with the possibility of 41 percent after the first year.
Texas law gives sheriffs sole discretion over commissary contracts. Commissaries supply snacks, such as chips, candy bars and soda, as well as certain toiletries, for inmates.
Friends and family put money in an inmate's account to spend on commissary items. A county's proceeds must be used for commissary staff, social needs of inmates (such as education or counseling), libraries, writing materials, clothing, hygiene items or other programs that contribute to inmates' well-being, according to state law. Kaelin said he uses commissary profits to buy newspaper subscriptions, televisions and uniforms.
Kaelin said inmates frequently complained about Premier's service. Under that system, inmates would order items to be packed into bags, shipped from San Antonio and handed out the next day. Kaelin said his office received numerous complaints about items being damaged or wrong.
Keefe stores items at the Nueces County Jail McKenzie Annex and brings items around on a cart twice a week so inmates can choose and receive items immediately, Kaelin said.
Premier's accounting system also allowed inmates to buy on credit, and as a result some inmates would leave custody owing money to Nueces County, Kaelin said. Keefe's system charges inmates' accounts directly by scanning a bracelet inmates wear. An inmate can't buy items unless there is enough money in the account.
Contact Denise Malan at 886-4334 or maland@caller.com
Jails rethink commissary contracts
By Denise Malan (Contact)
Monday, October 1, 2007
CORPUS CHRISTI — Two local sheriffs are distancing themselves from their predecessors' decisions to award jail commissary contracts to a company involved in a criminal investigation in Bexar County.
Kleberg County Sheriff Ed Mata said last week officials are researching ways to end that county's five-year agreement with the company, Premier Management Enterprises. Nueces County Sheriff Jim Kaelin gave Premier a 30-day termination notice on Jan. 24, after taking office.
Former Bexar County Sheriff Ralph Lopez resigned and pleaded no contest to accepting a trip to Costa Rica from the principals of Premier. The Lafayette, La., based company runs the county jail commissary.
Neither Kaelin nor Mata has documentation corroborating what their staffs have told them -- that their predecessors, Larry Olivarez of Nueces County and Tony Gonzalez of Kleberg County, went on that August 2005 trip. Neither Gonzalez nor Olivarez has responded to requests for comment.
There is no known investigation in Nueces or Kleberg counties.
"At this point no case has been submitted to me," Kleberg County District Attorney John Hubert said. "If something is submitted to me, I take every case on its own merits. I don't have any information other than what I've read in the papers and -- no offense to anybody -- that's not really evidence."
Nueces County District Attorney Carlos Valdez was out of the office late last week, and the Bexar County District Attorney's Office did not respond. The FBI would not comment.
Olivarez signed a contract with Premier five months after the Costa Rica trip involving the former Bexar County sheriff. Gonzalez signed a contract in September 2004.
Premier's principals, Patrick and Michael LeBlanc, also own LCS Correctional Services, which is building a private prison to house federal inmates near Robstown. A receptionist at Premier referred all questions to the company's chief executive officer, Chris Burch, who did not respond.
An attorney for the company, Tonya Webber of Corpus Christi, said her clients have not been commenting because of the open investigation in Bexar County. She said she would check with her clients for comment on the local contracts but did not respond after that.
Kaelin and Mata both cited performance issues with Premier as reasons for terminating the contract. Mata said the Bexar investigation also played a part.
"What I'm trying to do is just protect this county," Mata said. "I'm not trying to pass any judgment if something was done wrong."
Kaelin said his decision was based solely on Premier's performance. He met with Premier officials about complaints before ending the agreement, according to correspondence the Caller-Times obtained under the Texas Public Information Act. Kaelin and Premier also tangled over payments.
A new contract, with Keefe Supply, also is potentially more lucrative for the county. The Premier contract gave the county $130,000 or 31 percent of net sales, whichever was greater. The new contract gives a minimum of 39 percent with the possibility of 41 percent after the first year.
Texas law gives sheriffs sole discretion over commissary contracts. Commissaries supply snacks, such as chips, candy bars and soda, as well as certain toiletries, for inmates.
Friends and family put money in an inmate's account to spend on commissary items. A county's proceeds must be used for commissary staff, social needs of inmates (such as education or counseling), libraries, writing materials, clothing, hygiene items or other programs that contribute to inmates' well-being, according to state law. Kaelin said he uses commissary profits to buy newspaper subscriptions, televisions and uniforms.
Kaelin said inmates frequently complained about Premier's service. Under that system, inmates would order items to be packed into bags, shipped from San Antonio and handed out the next day. Kaelin said his office received numerous complaints about items being damaged or wrong.
Keefe stores items at the Nueces County Jail McKenzie Annex and brings items around on a cart twice a week so inmates can choose and receive items immediately, Kaelin said.
Premier's accounting system also allowed inmates to buy on credit, and as a result some inmates would leave custody owing money to Nueces County, Kaelin said. Keefe's system charges inmates' accounts directly by scanning a bracelet inmates wear. An inmate can't buy items unless there is enough money in the account.
Contact Denise Malan at 886-4334 or maland@caller.com
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