This prayer is for me tonight~ I want the Original 1010's ~ u r guilty and you will pay

I was innnocent
Satan, you know where I lie
Gently I go into that good night
All our lives get complicated
Search for pleasures overrated
Never armed our souls
For what the future would hold
When we were innocent

Angels, lend me your might
Forfeit all my lives to get just one right
All those colors long since faded
All our smiles all confiscated
Never were we told
We'd be bought and sold
When we were innocent

This prayer is for me tonight
This far down that line and still ain't got it right
And while confessions not yet stated
Our next sin is contemplated
Never did we know
What the future would hold
Or that we'd be bought and sold
We were innocent

Send "Innocent" Ringtone to Cell

Can you smell Mary Cano's Essence

talk and after you acquiesce? stupid.....mail fraud, abuse 0f power, not answer the phone?

What the hell are you getting paid for? to smell the essence? good your dad hated you so mention your family, i dare you to talk.

E. Malicious Prosecution~John Hubert is Guilty, Guilty,Guilty and fired .

* FindLaw
* 5TH CIRCUIT COURT


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http://laws.findlaw.com/5th/9841084cv0.html

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.").

Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxes

Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxes
The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. ~Then where is the states evidence?


Kings Inn where the Huberts dine on taxpayers dime: Governor Perry Our Official Objection To the Appointment of John Hubert (not
even for Dog Catcher)

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 5:29
a.m. (Suggest
removal )*

This man John Hubert is not fit to serve the people. He is a malicious
prosecutor. Next week a Federal Lawsuit will be filed against the 105th
District, Kleberg County, City of Kingsville, John Hubert alleging Civil
Rights Violations, prosecution for personal interests, abuse of power,
official oppression, falsifying documents, malicious prosecution, jury
tampering with more to be listed upon the filing of the lawsuit next week.
It is posible that this case will evolve into a class action lawsuit to
engulf the Uranium Processing, the groundwater contamination and the
complicity of Gov Rick Perry, Kleberg County, and the City of Kingsville.

A Tickler Of Events To Come!

*Posted by dannoynted1 on September 1, 2007 at 5:34 a.m. (Suggest
removal
)*

Carlos Valdez fired this joke.

Hubert fabricated evidence, lies to a jury and prosecutes based on
"personal" vendettas.

Too bad his very own words will be soon catching up to him and his ilk.

Perry, you are so sweet, thank you, and on a silver platter just for all the
world to see.

Hubert: "your Honor I'm gonna have to spend the rest of the summer in the
library"

Chiuminatto: "Don't insult the intelligence of this court"

Oh Kingsville, this will be a menace to your society.

*Posted by dannoynted1 on September 1, 2007 at 6:18 a.m. (Suggest
removal
)*

Poor Gearhart he is prison thanks to this vindictive prevaricator.

*Posted by dannoynted1 on September 1, 2007 at 6:22 a.m.*

*(This comment was removed by the site staff.)*

*Posted by laird30 on September 1, 2007 at 7:51 a.m. (Suggest
removal
)*

Sounds like sour grapes or druggies on the lame.

Hubert is a great young man.

Sorry if you have cannon obey the laws of this country folks.

James

*Posted by fish2026 on September 1, 2007 at 7:58 a.m. (Suggest
removal
)*

I don't know this prosecutor, and only rarely do a case in Kingsville. I'm
certainly not a big fan of Rick Perry- he's a mediocre governor at best.

On the other hand after reading the immature dribble that dannynted wrote
its clear to see WHO is the one with problems.

Kingalonzo - If you're telling the truth - please email me a copy of the
pleadings with all the allegations you claim fish2026@aol.com

If its going to be filed next week, then they should be substantially ready
by now, and you seem to know all the allegations.

I'm skeptical of what you write but here's a chance to prove you're not just
FULL OF IT.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 8 a.m. (Suggest
removal )*

John Hubert is not a great young man. If you would like to view the
documentation I will be happy to discuss it with you. Should you decline, it
is recommended that you stay out of the way. John Hubert maliciously
prosecuted my wife and even admitted to her attorney Fred Jimenez that it
was personal. He said, "You're damn right it's personal"!

Now, I believe there is a canon against that type of behavior and abuse of
power?

How bout it James?

Anton.

*Posted by fish2026 on September 1, 2007 at 8:01 a.m. (Suggest
removal
)*

Aransas County remains - perhaps the largest county in the state ( that has
not attempted to obtain their own DA. The state pays the DA salary and part
of the office expense and there's grant money available. One of Aransas'
commissioners said he was going to study it 6 months ago but I certainly
haven't heard from him.

Although Aransas County crime is nothing like CC, its been rising and too
many offenders are not prosecuted.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 8:09
a.m. (Suggest
removal )*

I just sent only the tip of the iceberg Mr fish.

Should you want to continue by all means let us carry on.

You will be embarrassed that you stuck up for this guy. I also have the
paperwork listing his places of deployment and there is nothing about Iraq
or the Gulf War.

*Posted by dannoynted1 on September 1, 2007 at 8:11 a.m.*

*(This comment was removed by the site staff.)*

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 8:24
a.m. (Suggest
removal )*

Got to go pay respects to a fallen warrior be back in the afternoon.

TTFN

*Posted by dannoynted1 on September 1, 2007 at 8:25 a.m. (Suggest
removal
)*

But you owe your first born child .....he said it..in black and white and it
is read all over!

*Posted by benjalamela on September 1, 2007 at 9:07 a.m. (Suggest
removal
)*

Let me get this right. Kleberg Co is in dire financial straits because of
the icompetence of the co. judge. The judge says it won't cost the county
anything for a new DA, right. The judge and the senator pushed for a new DA.
Hubert is a republican, the co. judge and the senator are D's (ok DINO's)
and they are backing Hubert. Orale, do they think we are blind - see ya in
Nov 08.

*Posted by quiet_guy_1999 on September 1, 2007 at 9:59 a.m. (Suggest
removal
)*

Yeah - reputable information from someone who admits Hubert prosecuted his
wife. You people are pathetic. Spend some time on bettering your own lives
instead of attempting to ruin the lives of others. Hubert is a great guy -
are ya all a little worried he may be the guy with the time to cease your
illegal activities? I recognize you all from a blog where you go on and on
and on spouting your untruths and slandering everyone who is associated with
the law. Kingalonzo, you are so full of crap when you say you have
documentation that can prove Hubert wasn't in Iraq. SO freakin full of crap.
Pretty sure the lawsuit kingalonzo is talking about is going to materialize
as a frivilous lawsuit from people who believe their civil rights have been
violated because someone enforcing the law actually made someone in their
family obey the law. give me a frickin break!!

*Posted by kspcm01 on September 1, 2007 at 11:30 a.m. (Suggest
removal
)*

Mr. Hubert is a good guy. He is quite competent and means well in trying to
prosecute individuals guilty of criminal behavior. I do not at all believe
that he is overzealous.

If he is guilty of anything, it is in caring for his community enough to
warrant the foulish complaints of those who were successfully prosecuted. He
strikes a good balance between crime and punishment and the judicial
process. Yes, the process itself is sometimes a punishment (even for the
innocent), but the motives are clean.

If this were an election, he would have my support.

*Posted by dannoynted1 on September 1, 2007 at 1:31 p.m. (Suggest
removal
)*

Not so quiet now verdad.........guy?

This Joke is going to get every thing he deserves and I won't have to do a
thing!

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 1:40
p.m. (Suggest
removal )*

Frivolous??

You know, sometimes it takes a civil suit just to bring the truth to the
top, to be able to ask some questions and get some answers documented to
right a wrongful act of the Kingsville prosecution. Now, if one County
Attorney can get indicted why not the new DA as well. I will trade the civil
litigation for the criminal prosecution of the ones you think so squeaky
clean. We are the little people who remain obtuse regardless of one's
feeling of superiorority. We are not going away and we will expect your
apology when the truh surfaces. BTW, if there is any attorneys who would
like to go on this magic carpet ride with me, now is the time.

As for Hubert, do you know who his sister is?

Which one of his relatives were involved in the Cheney shooting Whittington
deal. Don t take my word for it go do some home work. I sat in the court
room and watched this man lie through his teeth and when the truth began to
come out he always interrupted and suppressed it.

Perry has a useful spot for John Hubert to be appointed but Hubert will fail
to get elected when the time comes.

And one more thing.......

They drew first blood!

*Posted by dannoynted1 on September 1, 2007 at 1:44 p.m. (Suggest
removal
)*

means well in trying to prosecute individuals guilty of criminal then he
better take a look in the mirror , tampered with evidence , fabricated
evidence, presented false documents that is Fraud and he confessed he was
prosecuting myself for "personal" reasons.

He is and will always be a malicious prevaricator and abuse his authority
and just wait till it is his turn.

Ask him why Carlos Valdez FIRED him.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 1:44
p.m. (Suggest
removal )*

As for illegal activities, will you please support your comments with some
substance.

Either put up or shut up.

But you know the Federal Investigations occurring in this town right now
started with one little phone call and some very credible proof.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 1:52
p.m. (Suggest
removal )*

I applaud your condescension.

Keep fueling my fire?

.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 2:05
p.m. (Suggest
removal )*

Go look up a case named Gearhart.

See if you can get the video from the cop car camera when they are the ones
who screwed up?

The camera never works when the citizen request it.

John Hubert has no jurisdiction in Nueces County and that is where I live.

Quiet Guy you dont stand up for your wife?

My credibility resounds from CC Town all the way to the District.

Why so quicjk to take the side of a Kleberg Prosecutor whose blood relative
was part of the Whittington shooting cover up?

Did Bo come forward and reveal that Cheny was drunker than a skunk?

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 2:14
p.m. (Suggest
removal )*

One more point

I am here as myself my identity announced.

Most of you attack from behind anonymity and if it takes that protection for
you to become engaged then it is worth it.

Go back and look at how many times my words have been discounted only to
become truth and common knowledge after the discourse and fact checking.

*Posted by dannoynted1 on September 1, 2007 at 3:05 p.m. (Suggest
removal
)*

Hey Alfred Isassi still think you were the target of politics . Or set up or
halo.....both.?

Someone had an agenda and you were not going to stop this prevaricator from
getting his way.

Daynor Roberts.

Ever since Hubert was fired he has been trying to get his own "district"
Attorney JOB since he was fired he has been the main lobby behind this
"newly created" JOB.......just for him.
You had the nerve to get in his way and presto your under indictment , how
nice for the family eh?

Nepotism and cronism, wonder what his sister got on these mentirosos?

Go ahead and delete my words they are going elsewhere........I am not the
one that engineered "Sam Fugate chronicles".
This guy(Hubert) will lose come election time unless of couse him and mamone
pete (manicured nails pete) rig it like they did against Phil Esquivel mayor
elected by the people of Kingsville only to be replaced by the white bitter
men faction of Kingsville.
What is the Grand dragons name ........Virginia Frenzel and her BUNCH?

Sam Granato, .......another lawsuit that KV lost.

Pete De la Garza is the winner of the coconut of the week.

Yup had to get rid of the color that is not to say the last one is DeLa
Garza now that you helped out the bitter men........They do not need you
anymore Pete.

Time has a way of desperate people who use others because they can and you
my dear Pete will soon see things are not going to be like they
"used to be".

no more Kings Inn with the people that done got you to sell out your people.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 3:38
p.m. (Suggest
removal )*

1 A Stay of Mandate t file Writ of Cert

2 File Writ of Certiorari

3 Initiate Civil Due Process and file Plaintiff first request for Discovery,
written interrogatories and motions to take video deposition.

4 Serve everyone subpoenas and request for production of applicable agency
policy of which the prosecution relied on to charge defendant and address
TPU 105.

The suit will welcome all who can legitimately make a claim based on all
remedies and protections under the U S Constitution.

.

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 3:43
p.m. (Suggest
removal )*

For the mean time we are in the process of acquiring the Hvalinka V Schubert
Modification of JOB opportunities styled Sam Granato V City of Kingsville,
Carlos Valdez and a few other et als. When we obtain it we will make it
available to the public.

*Posted by quiet_guy_1999 on September 1, 2007 at 4:17 p.m. (Suggest
removal
)*

LOL!!! Oh brother! My wife would never find herself in position to be
prosecuted in the first place! I know several of the Hubert's personally.
And I don't think anyone was fooled by the alleged "cover up" when Cheney
shot his buddy. Anyone with a brain knows there was alcohol involved. You
make a mockery of someone who upholds the law with your rants and
raves....all of you do. Get a job, a real job!

*Posted by kingalonzoalvarezdepineda13 on September 1, 2007 at 6:26
p.m. (Suggest
removal )*

Like you Quiet Guy? Yeah you are too good for all of us. You just placed
your wife in terrible peril by saying, "My wife would never find herself in
position to be prosecuted in the first place!". Very ignorant hubris on your
part.

As far as that documentation it will be produced when the time is
appropriate.

I wonder has your wife ever video taped a copyrighted movie or show and
shown it at a party or public place?

Maybe she will accidentally run over someone while running late?

Maybe she will forget the quiet child in the back seat and remember a minute
too late.

Do a little homework Hvalinka v Schubert and the manipulation of one's JOB
opportunities.

Get a JOB you say as you know WATT you are talking about. My JOB gets better
by the day even though I work at night. Why dont you just spit it out and
introduce yourself?

You are a nobody and will never ascend in the communities of South Texas.

You know, John Hubert gives the Rivera Huberts a bad name.

As far as the Cheney prevarication it was an attempted cover up and was a
cover up for many hours while Bo Hubert Acquiesced and obstructed justice.
John Hubert obstructed Justice and withheld the exculpatory law and TPU to
capture an unjust conviction.

As for your wife, you made some very foolish statements for the sake of a
winning point, but how much Karma did you leverage?

I would never wish on your wife or any decent human being the last 7 years
of hell my wife and family have endured.

I ask that GOD bless you and your family as many blessings as the product of
all the sand grains on the beaches and all the stars in the universe raised
to the infinity powered squared. God, I ask that the hubris of this husband
be forgiven and that he humble himself in your presence. Let him receive the
guidance from you to act appropriately.
Amen

*Posted by rrempp on September 1, 2007 at 10 p.m. (Suggest
removal
)*

What the hell is all this freakin ranting and raiving about? You sound
ridiculous and malicious.

*Posted by tamuk94 on September 1, 2007 at 10:05 p.m. (Suggest
removal
)*

Hey King,

My only question is why did you put yourself in the position to have to
"endure this hell"?

Also, what do you mean by "Riviera Hubert's". John is a "RIviera Hubert".
You obviously don't know who his dad was. Just to let you know, it was Dr.
Pat Hubert, DVM.

*Posted by quiet_guy_1999 on September 1, 2007 at 10:13 p.m. (Suggest
removal )*

Oh brother!!!!!!!!!!!!! It's no wonder your wife is in trouble! Ahhh, but i
am a somebody. Somebody who thinks you're a flaming lunatic! No more time
spent here, folks. My foolish mind can't take no more!! hahahahahahahaha!!!
As far as karma goes, a wise old witchdoctor once told me, karma begins in
the car and ends with ma!! Oh, one more thing .... as far as my wife
infringing upon copyright violations, I doubt we have to worry - she's a
reader and a writer, not a television/movie watcher. And, she's never late
for anything so I doubt she'll run anyone over in her haste to arrive on
time. Nope, I'm not seeing it! But, just for the record, I REALLY REALLY
hope God blesses you, too!

And to John Hubert, I'm proud of you bud. Stand tall, convictions firm, and
go get 'em! Take it personally, John. It's your job to take the people who
disobey the law personal
Reply | Reply to all | Forward | Compose | View in Gmail

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!

Isassi and Hubert sitting in a tree....K~I~S~S~i~n~g

Sec. 36.05. Tampering with Witness.
(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
(d) An offense under this section is a state jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 721, Sec. 1, eff. Sept. 1, 1997.

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?

Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, w

posted by dannoynted1 at 2:46 AM | 0 comments links to this post
Saturday, December 30, 2006
The nature of the questionable conduct includes:

Harmful Error
Prosecutorial Misconduct Study Report Released

For over two years, Steve Weinberg, a veteran investigative journalist, working closely with Attorney Neil Gordon, writer Brooke Williams and a team of researchers with the Center for Public Integrity, conducted an exhaustive study of prosecutorial misconduct across the United States. The project is well suited to the Center for Public Integrity, a consortium of journalists, lawyers and researchers in Washington, D.C., that specializes in uncovering systemic problems. Funding for the prosecutorial misconduct project is coming from several sources, most prominently the Open Society Institute, New York City.

Did you know --

* Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,017 cases.

* The nature of the questionable conduct includes:

o Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);
o Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);
o Failing to disclose exculpatory evidence;
o Threatening, badgering or tampering with witnesses;
o Using false or misleading evidence;
o Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);
o Improper behavior during grand jury proceedings.

Learn what you don't know, before it hurts you! Click the title to read the report.


Read Steve Weinberg's account of the Ellen Reasonover story, Railroaded, published in The American Lawyer.


Truth in Justice

posted by dannoynted1 at 10:56 PM | 0 comments links to this post
Contributors

* Jaime Kenedeño
* dannoynted1

Links

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Previous Posts

* Ain't it hard when you discover thatYou shouldn't let other people get your kicks for you
* DID YOU HAVE REASONABLE DOUBT? WAS YOUR DOUBT REASONABLE?
* Section 31.01 (1) of the Texas Penal Code defines A deception : by words or conduct a false impression of law OR fact that is likely to affect .......
* The State presented evidence intentionally knowing his conduct is unlawful; not to mention ILLEGAL!
* RR 106 volume 3 of 3 @7-22
* t' lana: I'm taking over so watch me shine..........
* did you have reasonable doubt .......that you would owe your "first born child" ~`~over my Lord's Dead Body
* The nature of the questionable conduct includes:
* Up until now I've been forgivin' and forgettin' because of the way I was brought up, but I'll tell you one thingI'm gonna change you from a rooster
* Jury Consultants Q&A Jury Consultants Voir Dire While the actual outcome of their vote may not be correlated to the real trial, nevertheless lessons

Archives

* July 2006
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posted by dannoynted1 | 12:42 PM | 0 comments links to this post
Saturday, March 24, 2007
I hope and pray.........I still can see things hopefully

http://sacredheart-dannoynted1.blogspot.com/2006/06/watch-it-and-see.html



Blues Traveler - Run Around Lyrics


Once upon a midnight dreary
I woke with something in my head
I couldn't escape the memory
Of a phone call and of what you said
Like a game show contestant with a parting gift
I could not believe my eyes
When I saw through the voice of a trusted friend
Who needs to humor me and tell me lies
Yeah humor me and tell me lies
And I'll lie too and say I don't mind
And as we seek so shall we find
And when you're feeling open I'll still be here
But not without a certain degree of fear
Of what will be with you and me
I still can see things hopefully

But you
Why you wanna give me a run-around
Is it a sure-fire way to speed things up
When all it does is slow me down

And shake me and my confidence
About a great many things
But I've been there I can see it cower
Like a nervous magician waiting in the wings
Of a bad play where the heroes are right
And nobody thinks or expects too much
And Hollywood's calling for the movie rights
Singing hey babe let's keep in touch
Hey baby let's keep in touch
But I want more than a touch I want you to reach me
And show me all the things no one else can see
So what you feel becomes mine as well
And soon if we're lucky we'd be unable to tell
What's yours and mine the fishing's fine
And it doesn't have to rhyme so don't you feed me a line

But you
Why you wanna give me a run-around
Is it a sure-fire way to speed things up
When all it does is slow me down

Tra la la la la bomba dear this is the pilot speaking
And I've got some news for you
It seems my ship still stands no matter what you drop
And there ain't a whole lot that you can do
Oh sure the banner may be torn and the wind's gotten colder
Perhaps I've grown a little cynical
But I know no matter what the waitress brings
I shall drink it and always be full
Yeah, i will drink it and always be full

Oh I like coffee
And I like tea
I'd like to be able to enter a final plea
I still got this dream that you just can't shake
I love you to the point you can no longer take
Well all right okay
So be that way
I hope and pray
That there's something left to say

But you
Why you wanna give me a run-around
Is it a sure-fire way to speed things up
When all it does is slow me down

But you
Why you wanna give me a run-around
Is it a sure-fire way to speed things up
When all it does is slow me down

posted by dannoynted1 | 4:45 AM | 0 comments links to this post
Wednesday, January 03, 2007
I'm taking over so watch me shine..........

http://sacredheart-dannoynted1.blogspot.com/2006/06/watch-it-and-see.html

Watch Me Shine Lyrics


Send Vanessa Carlton polyphonic ringtone to your cell phone


Ooh..

I'm not your average type of girl
I'm gonna show the world
The strength in me that sometimes they can't see
I'm about to switch my style
And soon things may get wild
But I'll prove that I can conquer anything

So from my head to toe
I'm taking full control
I'll make it on my own this time
(watch me shine)

Better watch out
Going for the knockout
And I won't stop till I'm on top now
Not gonna give up until I get what's mine
Better check that I'm about to upset
And I'm hot now so you better step back
I'm taking over so watch me shine

Oh oh oh

So get ready here I come
Until the job is done
No time to waste
There's nothing stopping me
Oh
But you don't hear me though
So now it's time to show
And prove I'm gonna be the best I can be

So from my head to toe
My mind, body and soul
I'm taking full control
This time
(So watch me shine)

Better watch out
Going for the knockout
And I won't stop till I'm on top now
Not gonna give up until I get what's mine
Better check that I'm about to upset
And I'm hot now so you better step back
I'm taking over so watch me shine

Oooo oh ya ya (Oh ya ya)

Bet you don't think I can take it
But my mind and body are strong
Bet you don't think I can make it
It won't take long

Bet you don't think I can take it
But my mind and body are strong
Bet you don't think I can make it
It won't take long

Now watch me shine...

Better watch out
Going for the knockout
And I won't stop till I'm on top now
Not gonna give up until I get what's mine
Better check that I'm about to upset
And I'm hot now so you better step back
I'm taking over so watch me shine

Now watch me shine...

Better watch out
Going for the knockout
And I won't stop till I'm on top now
Not gonna give up until I get what's mine
Better check that I'm about to upset
And I'm hot now so you better step back
I'm taking over so watch me shine

Watch me...

Ooh oh oh

Watch me shine...

watch me...

posted by dannoynted1 | 12:56 AM | 0 comments links to this post
Saturday, July 22, 2006
Cause all the dreams you never thought you'd lose

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posted by dannoynted1 | 12:35 AM | 0 comments links to this post
(Jesus)~This I pray

AS I LAY ME DOWN
It felt like springtime on this February morning
In the courtyard birds were singing your praise
I'm still recalling things you said to make me feel alright
I carried them with me today, Now

Chorus:
As I lay me down to sleep
This I pray
That you will hold me dear
Though I'm far away
I'll whisper your name into the sky
And I will wake up happy

I wonder why I feel so high
Though I am not above the sorrow
Heavy hearted
Till you call my name
And it sounds like church bells
Or the whistle of a train
On a summer evening
I'll run to meet you
Barefoot barely breathing

As I lay me down to sleep
This I pray
That you will hold me dear
Though I'm far away
I'll whisper your name into the sky
And I will wake up happy

It's not too near for me
Like a flower I need the rain
Though it's not clear to me
Every season has its change
And I will see you
When the sun comes out again

As I lay me down to sleep
This I pray
That you will hold me dear
Though I'm far away
I'll whisper your name into the sky
And I will wake up happy

~sophie b. hawkins

posted by dannoynted1 | 12:24 AM | 0 comments links to this post

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 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

The State conceded error on appeal but claimed that the error was harmless. All error is harnful

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0230-06

CHARLES EDWARD JONES, Appellant


v.


THE STATE OF TEXAS


ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

Keller, P.J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, and HOLCOMB, JJ., joined. WOMACK, J., filed a dissenting opinion in which KEASLER, HERVEY, and COCHRAN, JJ., joined.

The trial court erroneously refused to permit defense counsel to ask a proper question during voir dire. The State contends that, depending on the circumstances, such an error may or may not be of constitutional dimension. Under our precedents, however, this type of error constitutes a violation of the Texas Constitution.

I. BACKGROUND

Through a question directed at the entire venire, appellant sought to inquire whether jurors could give effect to the law that prohibits them from considering, for punishment purposes, whether a defendant will ever be paroled. The State objected that the question was "improper voir dire," and the trial court sustained this objection. Defense counsel objected to the trial court's ruling, and appellant subsequently complained on appeal.

The State conceded error on appeal but claimed that the error was harmless. The court of appeals found that the error was constitutional in nature and that it was harmless. (1) Appellant filed a motion for rehearing, which was granted. Relying upon our decision in Rich v. State, (2) the court of appeals withdrew its first opinion and issued a second opinion, concluding that the error was not constitutional in nature and that it was harmless. (3)

II. ANALYSIS

A long line of cases has held that the "right to counsel" under the Texas Constitution includes the right to pose proper questions during voir dire examination. (4) A look at the constitutional provision and the older cases reveals that "right to counsel" is somewhat of a misnomer. The Texas Constitution provides in relevant part: "In all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both." (5) Two of the oldest cases in this line of precedent, Carlis and Plair, describe the right to interrogate prospective jurors as falling within the "right to appear by counsel." (6) The suggestion seems to be that the right to ask questions is included in the "right of being heard," (7) which of course, would apply even to a defendant who was representing himself.

Plair further held that this right entailed permitting the questioning of each individual juror; it was not enough to merely permit a question to be directed to the panel as a whole. (8) In that case, defense counsel had questioned four or five jurors individually on three different topics, and the trial court believed that, if questioning continued at the rate it was going, counsel would require "much more than the whole day to complete the panel." (9) In an attempt to save time, the trial court prohibited counsel from directing these questions individually to the remaining members of the venire but, instead, directed those questions to the entire panel with an admonition that the questions were directed to each panel member individually "and for anyone to speak up and answer." (10) In holding that the trial court erred, this Court emphasized the right of counsel to assess a prospective juror's responses in light of individual questioning:

There is a certain degree of timidity and diffidence about some jurors that would be calculated to cause them to remain silent unless personally called upon to answer any questions. Again we think it clear that the right to appear by counsel carries with it the right of counsel to interrogate each juror individually to the end that he may form his own conclusion after this personal contact with the juror as to whether in counsel's judgment, he would be acceptable to him or whether on the other hand he should exercise a peremptory challenge to keep him off the jury. (11)


As can also be seen from the facts, the Plair Court seemed to be of the opinion that the trial judge could not himself make the decision as to how counsel was to use his time. Rather, the Texas constitutional right entailed permitting counsel (or a pro se defendant) to ask any proper question he wished of any individual venireman so long as the voir dire examination was "within reasonable limits." (12)

Although Rich analyzed error in refusing to permit the asking of a proper question as non-constitutional, it did so because the defendant did not contest the court of appeals's characterization of the error as such. (13) Thus, the court of appeals in this case erred in relying upon Rich for the proposition that the error was of the non-constitutional variety.

The State concedes that this Court has repeatedly held that the "counsel" provision of the Texas Constitution encompasses the right to ask questions during jury selection. Moreover, the State does not contend that the cases recognizing this right should be overruled. Rather, relying upon Potier v. State (14) and advancing a distinction between constitutional and non-constitutional issues, the State contends that the Texas constitutional right was not violated in this case. Although the dissent suggests that the cases recognizing a state constitutional right to ask proper questions were wrongly decided, we do not find it prudent to address that question in this case. The state constitutional right in question has been recognized for over ninety years. If the State wishes this Court to re-examine whether the Texas Constitution confers the right to ask proper questions in voir dire, it should raise this issue and afford this Court the benefit of an analysis of the issue and allow any party the opportunity to respond. Given the briefing and posture of the case, then, we do not here re-examine the caselaw to determine whether the Texas Constitution actually provides such a right. Instead, we concern ourselves only with the scope of the Texas constitutional right established in our caselaw. (15)

The State points out that, under Potier, not every erroneous exclusion of evidence amounts to a constitutional violation. (16) Rather, such exclusion rises to a constitutional magnitude only if the evidence forms such a vital portion of the case that it precludes the defendant from presenting a defense. (17) By analogy, the State argues that the refusal to permit a proper question in voir dire should rise to the level of constitutional error only if precluding the question effectively prevents defense counsel from rendering effective assistance. The State concludes that counsel was not rendered ineffective because parole was a peripheral issue in the case.

While the State's Potier analogy is facially appealing, it is ultimately unpersuasive. Potier grounded its holding upon the historical treatment given by federal courts to exclusion-of-evidence claims arising from the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (18) However, the Texas "right to be heard" clause is separate from Texas's own compulsory process clause (19) (as well as the state "due course of law" provision) (20) and, as the caselaw discussed above shows, has a very different historical tradition. None of our precedents have drawn a connection between the Texas constitutional right to be heard by asking questions at voir dire and a generalized notion of effective assistance of counsel. Rather, the cases have more specifically focused on whether counsel had the opportunity to intelligently exercise for-cause and peremptory challenges. (21) And that opportunity is required to be afforded with respect to each individual juror and, if desired, after a personal examination. (22) Moreover, prior caselaw makes clear that the constitutional right to be heard requires permitting the (proper) question defense counsel wishes to ask, not the one the trial court believes adequately protects the defendant. (23) Analyzing the constitutional right in question as one of counsel's general effectiveness at trial is simply inconsistent with our past cases conferring upon counsel the constitutional right to make his own individualized assessment of each of the prospective jurors.

Not only is there an historical basis for distinguishing the compulsory process and due process protections from the right to be heard at voir dire, but there is also a substantive basis for the distinction. The right of compulsory process and the due process right to present evidence involve, of course, the right to present a defense, and so, a question about whether the proffered evidence was essential to the defendant's defense is appropriate. By contrast, the right to be heard at voir dire is a right to participate in the proceedings in a certain way. The denial of that participation is the constitutional violation, even if it is later determined that the defense was not compromised by that denial. Such a later determination would be relevant to a harm analysis but is not appropriate for determining whether this type of constitutional violation occurred.

The State's remaining contention is that a denial of questioning can be deemed constitutional or non-constitutional depending on whether the question's subject matter is constitutional or non-constitutional in nature. That contention flies in the face of the fact that the right to be heard is said to encompass questions for the purpose of exercising peremptory challenges. A question asked solely for the purpose of intelligently exercising a peremptory challenge would not even involve a statutory right much less one of constitutional origin. And the contention is inconsistent with the nature of the right, which focuses upon counsel's (or the defendant's) ability to participate in voir dire for the purpose of making his own individualized assessment of each of the prospective jurors. While there are certainly limits to how far the questioning can go in making an individualized assessment, (24) such an assessment (even from a "for cause" perspective) clearly goes beyond the ability of a prospective juror to adhere to constitutional requirements.

The judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion. (25)

Date delivered: April 4, 2007

Publish




1. Jones v. State, No. 01-03-00651-CR (Tex. App.-Houston [1st Dist.], Sep. 23, 2004)(not designated for publication).

2. 160 S.W.3d 375 (Tex. Crim. App. 2005).

3. Jones v. State, No. 01-03-00651-CR (Tex. App.-Houston [1st Dist.], Jul. 28, 2005)(on rehearing)(designated for publication, subsequently withdrawn, reinstated by 2006 Tex. Crim. App. LEXIS 851 (2006)). After appellant filed his petition for discretionary review, the court of appeals filed a third opinion, but we ordered that opinion withdrawn because it was untimely. Jones v. State, 2006 Tex. Crim. App. LEXIS 851 (2006).

4. Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996); Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985); Powell v. State, 631 S.W.2d 169, 170 (Tex. Crim. App. 1982); Mathis v. State, 576 S.W.2d 835, 836-837 (Tex. Crim. App. 1979); De La Rosa v. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967); Mathis v. State, 167 Tex. Crim. 627, 628-629, 322 S.W.2d 629, 631 (1959); Carlis v. State, 121 Tex. Crim. 290, 291-292, 51 S.W.2d 729, 730 (1932); Plair v. State, 102 Tex. Crim. 628, 629-631, 279 S.W. 267, 268-269 (1925).

5. Tex. Const., Art. I, §10 (emphasis added).

6. Carlis, 121 Tex. Crim. at 291, 51 S.W.2d at 730 (emphasis added); Plair, 102 Tex. Crim. at 631, 279 S.W. at 269 (emphasis added).

7. See Plair, 102 Tex. Crim. at 630, 279 S.W. at 268 (statute and constitutional provision provide accused with "the right of being heard by himself or counsel or both").

8. Id. at 629-631, 279 S.W. at 268-269.

9. Id. at 630, 279 S.W. at 268.

10. Id. at 629-630, 279 S.W. at 268..

11. Id. at 631, 279 S.W. at 269.

12. Id.; see also Carlis, 121 Tex. Crim. at 291, 51 S.W.2d at 730.

13. Rich, 160 S.W.3d at 577 ("The Court of Appeals found this to be non-constitutional error and applied Rule 44.2(b). Rich does not contest this conclusion, so we assume that to be the proper rule.").

14. 68 S.W.3d 657 (Tex. Crim. App. 2002).

15. See Rich, supra.

16. See Potier, 68 S.W.3d at 659.

17. See id. at 665.

18. See id. at 659-664.

19. See Tex. Const., Art. I, §10 ("shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor").

20. See Tex. Const., Art. I, §19.

21. See e.g. Carlis, 121 Tex. Crim. at 292, 51 S.W.2d at 730.

22. Plair, supra.

23. See Carlis, 121 Tex. Crim. at 291-292, 51 S.W.2d at 730 (trial court's question to the venire regarding whether any of the members had an acquaintance with the district attorney that would influence them in rendering a verdict could not substitute for counsel's desired question regarding whether any members of the venire were acquainted with the district attorney); De La Rosa, 414 S.W.2d at 671-672 (referring to "many cases" in which the constitutional right to be heard was violated where the trial court placed a limitation on the type of question to be asked or refused to permit a specific question).

24. See e.g. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001)(prohibition against commitment questions that do not give rise to a challenge for cause)

25. The court of appeals's resolution of the harm issue on remand may seem a foregone conclusion since it has already found the error harmless under both the constitutional and non-constitutional standards. But since the court of appeals withdrew its opinion finding the error harmless under the constitutional standard, we will afford it the opportunity to address the issue.