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Texas district attorney says system failed in case of man convicted of sexual assault

Williamson County District Attorney Shawn Dick

Texas district attorney says system failed in case of man convicted of sexual assault

Williamson County District Attorney Shawn Dick says the criminal justice system failed in the prosecution of Greg Kelley.

Kelley was convicted and sentenced to 25 years in prison for the sexual assault of a 4-year-old child in 2014. But the conviction was thrown into doubt when Kelley’s defense team found that another man, who used to be Kelley’s best friend, might have committed the crime.

The case was reopened earlier this year after evidence emerged that a man named Johnathan McCarty confessed to a friend that he molested the child in question. Pictures of naked children were also discovered on McCarty’s computer.

Kelley, a former high school football star, is now out on bail, and it appears increasingly likely that he will be exonerated. He was 19 at the time of his conviction and is now 22.

Earlier this month, Dick said he would not have tried Kelley if he’d been the elected prosecutor in Williamson County at the time of the trial. He also expressed anger and frustration over what occurred, suggesting that responsibility “lies at the foot of law enforcement, of the prosecutors, of his defense team and of the jury.”

“My commitment is to restore the public’s faith and trust in our criminal justice system,” said Dick, who took office in January. “I can’t do that by defending a prosecution like Mr. Kelley’s.”

“We have to make sure that innocent people, that an innocent person isn’t convicted, and sometimes that is very unsatisfying because it means potentially a guilty person is set free,” Dick said. “But, the goal of our office is to make sure the public can believe in our system and that when jurors go to court, they know that when the state stands up, they’re telling the truth.”

Dick also said the Cedar Park Police Department’s investigation was “wholly deficient.” According to local news reports, the department never investigated or questioned McCarty, despite the fact that his name came up during the initial investigation, he was living in the home where his mother ran an in-home day care center at the time of the alleged assault, and he and McCarty “looked strikingly similar at the time.

Jana Duty was the Williamson County District Attorney at the time Kelley was prosecuted. Dick defeated her in a March 2016 primary and later won the general election, running unopposed.

One of the jurors from Kelley’s trial said he believed Kelly was innocent but voted to convict under pressure from other jurors. That juror now says Kelley should be exonerated and he regrets caving to the pressure to convict.

A victory for racially inclusive juries in Washington

Washington State Temple of Justice
Wikimedia Commons

A victory for racially inclusive juries in Washington

The transcript calls him Mr. Meyer, or Juror №5. In October 2014, he arrived at Seattle Municipal Court, which handles misdemeanors, for the trial of Matthew Erickson. Mr. Erickson had been charged with unlawful use of a weapon and resisting arrest.

The judge told the prospective jurors that the lawyers would question them to see if they were “unbiased.” The prosecutor and the defense attorney each got fifteen minutes. Defense counsel’s question about whether any of the jurors had ever argued with a police officer led to this conversation with Mr. Meyer:

[MR. MEYER]: I was walking to Volunteer Park to meet some friends when two police cars pulled up and asked me to come up to the car and put my hands on the car. And I asked them for what reason. They said that somebody had just stole something from a church nearby and that I fit the description. I was kind of upset with that because I didn’t think I fit the description of somebody who just. And I asked [ . . . ] what was the description [ . . . ]. I said, “Was it a guy with long hair?” because I wore my hair long. And they wouldn’t tell me what the description was, so I talked back to a cop.

[MR. MEYER]: They took my ID and ran it and then let me go.

[DEFENSE COUNSEL]: How did it make you feel to be accused by the police of doing something that you hadn’t done?

[MR. MEYER]: Angry, embarrassed, and upset.

Mr. Meyer was asked nothing more on this topic. When the lawyers had finished their questioning, it was time for the challenges “for cause” — in other words, arguments that particular jurors could not be fair. Neither side mentioned Mr. Meyer. Then came peremptory challenges: the ability of either side to remove a potential juror for any non-discriminatory reason. The judge agreed with defense counsel’s suggestion that the jurors remain in the courtroom while these challenges were announced.

For his first peremptory challenge the prosecutor proclaimed: “The City would like to thank and excuse Juror №5.” When all six jurors who had been “struck” learned their fate, the judge thanked them, acknowledging that they had done their civic duty for “very, very small” remuneration. They were led away.

Little did Mr. Meyer know that soon after his departure, court staff went racing out of the courtroom to see if he was still in the building. After the jury had been sworn in, Mr. Erickson’s attorney had raised a Batson challenge, arguing that the prosecutor had struck the only black member of the jury panel (Mr. Meyer) in the trial of a black defendant. But did this claim come too late? The search came up empty; Mr. Meyer and his cohort were gone.

Thus began the three-year journey of a Batson claim that persisted through its initial rejection by the trial judge, through Mr. Erickson’s conviction and sentencing, through procedural intricacies, multiple courts, and three failed requests for relief, and finally, to the Washington Supreme Court, which declared a new trial for Mr. Erickson, and two new — or newly clarified — principles in the state’s law. The first was that it’s not too late to bring a Batson claim in these circumstances (i.e., after the trial jury has been empaneled). The second was that a peremptory strike of the only member of a cognizable racial group constitutes a prima facie showing of racial discrimination (and, thus, requires the side which used the peremptory strike to provide a “race-neutral” explanation for doing so).

This was a victory against the odds. In 2013, I was teaching Mr. Erickson’s appellate lawyers (then students at Seattle University School of Law) about Batson. In 2017, here they are telling me about the feeling of pure elation when they learned that they had changed the state’s law, and describing the moment when one read the decision to the other, and they both started screaming. All three of us had read cases in which Batson courts wring their hands over signs of discrimination, but deny relief to defendants on some procedural ground. Now we were marveling that they avoided this fate.

Batson victories have always been hard-fought. Mr. Batson himself (as this wonderful podcast tells us) had to beg his lawyer to “object anyway” — even in the absence of case law to call on — as one by one every juror of his race was sent home.

Even while moving Batson forward, Mr. Erickson’s case reminds us how much remains to be achieved. One of the beauties — and horrors — of Batson is that it frequently requires those applying it to reveal something about how they think race discrimination works. In one of the more extraordinary moments in Mr. Erickson’s short trial, the trial judge paused in his analysis of the Batsonclaim to inquire into the prosecutor’s “background”:

[COURT]: Mr. Singla, I wanted to make sure you had the opportunity to state your own background on the record as the allegations are being made against you. You don’t have to if you don’t wish to.

[PROSECUTOR]: That’s fine, your Honor. I am an immigrant to this country. I came here from India when I was 12 years old. I grew up here in eastern Washington in a racially mixed community and I attended both Washington State University and the University of Washington.

[COURT]: And you identify as a racial minority or as a nonwhite or white person?

[PROSECUTOR]: I identify myself as an East Indian.

The trial judge also diverted from a focus on the stricken juror’s race — and, specifically, his Blackness — when, as part of his justification for rejecting the Batson claim, he stated that “there was a diverse jury.” The judge noted that even though the only black juror had been removed, three people of color had made it onto the jury. The Washington Supreme Court pounced at oral argument, with one justice noting that the use of a “diverse” jury to rebut a claim of discrimination against black jurors “almost asks us to erase the entire history of how Black people have been seen in this country.”

Further, one concurring justice cautioned not to take the court’s decision as signaling that they’ve “fixed the problem.” After all, Mr. Erickson’s case addresses only the first step of the three-step Batson test: where an attorney objecting to the use of a peremptory strike attempts to establish a prima facie case of discrimination. Even if the problems with the first step could be fixed, significant problems remain with both the second step, which requires the side that struck the potential juror to provide a race-neutral reason for the peremptory challenge, and the third, where the judge decides whether purposeful discrimination has been established. Still, this case offers some valuable insights going forward.

The prosecutor’s proffered “race neutral” justification for striking Mr. Meyer was the fact of his prior interaction with the police stop, and the fact that he had been “argumentative” and had felt “embarrassed and angry.” Batsondoctrine typically characterizes a person’s negative experience with law enforcement as a “race-neutral” justification, and this kind of proffered justification is common. Indeed, as the prosecutor said at oral argument, where the prosecution witnesses are police officers, “I don’t know why you wouldn’t excuse that juror.”

Again the Justices pounced, both as regards the logic of the justification (“I’ve had negative experiences with lawyers before, but I still think I can be fair to them.”), and with respect to the implications of insulating it from challenge (“Do you think a prosecutor can peremptorily challenge anyone who has ever had an experience — positive or negative — with the police, and it will always be non-racially motivated?”). There seems to be interest within the Washington Supreme Court to give such justifications a hard look. As one justice said, “We are unlikely to see different outcomes unless courts are willing to more critically evaluate proffered race neutral justifications.”

But the justices don’t overstate what judicial opinions can achieve. One wrote that “there are better avenues,” and indeed Washington is a hotbed of jury-related bias initiatives right now. Pending before the Supreme Court is a proposed court rule, which would expand Batson by removing the requirement of proving purposeful discrimination. It would also create a presumption that certain justifications, such as “expressing a distrust of law enforcement,” are invalid. Additionally, some state courts are borrowing a new juror orientation video from the federal Western District of Washington, which addresses implicit bias. (As suggested here, this is unprecedented.) And the lamentable rates of juror pay are the subject of local litigation, and other efforts are being made to diversify local jury panels.

Two concurring justices offer additional suggestions. First, that “it may be time for us to require that counsel be afforded ample time for thoughtful questioning of prospective jurors.” It’s hard to quibble with that. But, second, they urge “the complete abolishment of peremptory challenges.” I have written elsewhere about my disagreement, and Mr. Erickson’s appellate lawyers also resist this proposal. As one of them says, “the current state of for-cause challenges is so abysmal that getting rid of peremptories would be devastating to the defense bar.” Not only is the time allotted for jury questioning far too short, but the judiciary is reluctant to grant challenges for cause. Thus, the peremptory challenge — so often a vehicle for discrimination — remains essential to their fight for a fair trial.

This irony — that by bringing the appeal Mr. Erickson’s lawyers inspired talk of abolition of a tool that they prize — is not the only ironic part of the case. The more poignant example concerns Mr. Meyer. He did all that was asked of him. He showed up, for pitiful remuneration. He participated. Indeed, he shared a story of humiliation at the hands of law enforcement. The response was his removal by law enforcement in open court. Mr. Erickson has been awarded another trial. Perhaps this time he will have a peer or two on his jury. But for Mr. Meyer, the case is closed.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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Shoplifting from Wal-Mart can get you 12 years of prison time in Tennessee

The price of shoplifting at Wal-Mart isn’t always low.

Shoplifting from Wal-Mart can get you 12 years of prison time in Tennessee

The price of shoplifting at Wal-Mart isn’t always low.

Under Tennessee law, shoplifting items valued below $1,000 is a misdemeanor offense that carries a maximum jail sentence of one year. But that hasn’t stopped district attorneys in at least two counties from charging shoplifters who steal goods worth far less than that with burglary — a felony that can land someone in prison for up to 12 years and strip offenders of their voting rights.

On August 25, after reviewing a case in which a defendant was charged with burglary after she stole less than $100 in Wal-Mart property, the Tennessee Criminal Court of Appeals confirmed that such a charging scheme is “unreasonable, unjust, and violative of due process.”

In 2014, Danielle Chandria Jensen allegedly shoplifted items worth $72.17 from a Wal-Mart in Putnam County. Although she was initially charged with misdemeanor theft, misdemeanor assault, and misdemeanor trespass, the Putnam County District Attorney’s Office later dropped the trespass charge. At trial, Jensen’s jury could not reach a unanimous verdict and a mistrial was declared. Rather than drop the misdemeanor charges against Jensen, Assistant District Attorney Bret T. Gunn opted for a second trial one month later. He also decided to raise the stakes. A week before the retrial was scheduled to begin, the prosecutor added a third charge against Jensen: burglary, a felony offense.

Under Tennessee law, someone commits burglary if he or she “[e]nters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault.” Because it is a crime that has generally been understood to involve breaking into a closed business or home, burglary is widely viewed as a more serious offense than shoplifting — particularly shoplifting at a major retail chain that is open to the public 24-hours a day (like Wal-Mart).

Jensen’s attorney filed a motion before her retrial in an effort to have the case dismissed, arguing that the State was vindictively adding the felony charge “because [Jensen] chose to exercise her right to trial and defeated the State’s efforts to convict her.” Jensen’s attorney also questioned the propriety of adding new charges despite the facts of the case remaining the same.

In response, Gunn explained that following the mistrial, he was informed of another district attorney’s approach to prosecuting Wal-Mart shoplifters. Gunn claimed that during a prosecutor conference, an unnamed staff member from the Knox County District Attorney General’s office told him that their office charged repeat shoplifters for burglary instead of petty theft. Having learned after her original charges were filed that Jensen had previously been banned from Wal-Mart, Gunn decided to bring the more serious charge against her.

The trial court adamantly disagreed with Gunn’s handling of the case and dismissed the charges against Jensen. “A prosecuting attorney must act responsibly and use his authority and power to diligently seek justice. The resources of the Thirteenth District’s criminal justice system are not the prosecutor’s personal resources to be expended as he sees fit. Misdemeanor trials cannot be conducted as dress rehearsals for later felony trials,” the court said. “This case demonstrates poor investigation, poor charging choices, and poor presentation on the part of the State.”

The State unsuccessfully appealed the case. Judge Camille McMullen, writing for the unanimous three-judge panel for the Criminal Court of Appeals, upheld the trial court’s dismissal and sharply criticized the Putnam County District Attorney’s Office approach. “Historically, the crime of burglary served to protect people in their homes at night,” she wrote. “By charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting, prosecutors are abusing their charging discretion by unilaterally and unreasonably expanding the reach of the burglary statute.”

Despite the forcefulness of the court’s ruling, this decision doesn’t appear to be enough to stop some other Tennessee prosecutors from bringing burglary charges in shoplifting cases. Indeed, as Knox County District Attorney General Charme Allen made clear, her office intends to keep charging repeat shoplifters with felony burglary.

“Citizens should be able to shop in Knox County without being exposed to chronic criminal activity,” one of Allen’s assistant prosecutors, Deputy Assistant District Attorney General Kyle Hixson, told the Knoxville News Sentinel. “These prosecutions have been a valuable tool as we seek to ensure that Knox County remains a safe place for businesses to operate.”

Whether the Knox County District Attorney’s Office’s approach will also be deemed a “unilateral and unreasonab[e] expan[sion]” of its otherwise broad powers remains to be seen.

Thanks to Jake Sussman.

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