The Guilty and the Innocent
The case for punishing prosecutors who abuse their power.
On September 17, in a decisive 7–2 ruling, the Texas Court of Criminal Appeals overturned the capital murder conviction of a Corpus Christi woman named Hannah Overton. Readers of Texas Monthly may recall Overton’s case, which I examined in an article a few years ago called “Hannah and Andrew,” a lengthy story that questioned the assumptions that had led to her prosecution. Overton is one of a number of defendants I have written about in recent years whose convictions have been overturned by the CCA. Michael Morton, who was sentenced to life in prison in 1987 for the murder of his wife, and Anthony Graves, who was sent to death row in 1994 for killing six people, were exonerated after spending a collective 42 years behind bars. Although these three cases are each quite different, they share a common theme: the prosecutors who sought their indictments and secured their convictions should never have tried the cases in the first place.
Take, for example, the facts surrounding Overton’s case. The mother of five was arrested in 2006 after Andrew Burd, a four-year-old foster child whom she and her husband were in the process of adopting, mysteriously died from a rare case of salt poisoning. Overton, who had no prior arrests and no previous run-ins with Child Protective Services—and who had earned an excellent reputation as a private-duty nurse for special-needs children—quickly became the focus of the Corpus Christi Police Department’s investigation into Andrew’s death. The Nueces County district attorney’s office discounted evidence suggesting that Andrew had an undiagnosed eating disorder called pica, which is not uncommon among foster children and involves ingesting inappropriate items, including salt. Concluding that a crime had taken place, the DA’s office secured an indictment for capital murder.
The Nueces County DA’s office aggressively pursued Overton, asking jurors to find her guilty and give her a life sentence without the possibility of parole, even though prosecutors could not answer the most basic questions about how she would have committed the crime. How had the diminutive Overton, who was six months pregnant at the time of Andrew’s death and mostly confined to her bed because she was recovering from whiplash after a car accident, managed to overpower the boy? How had she gotten him to choke down such a considerable quantity of salt without causing any lacerations or injuries to his mouth? How could Overton, who had no history of mental illness or violence, have suddenly become capable of the cold-blooded murder of a child? Worst of all, prosecutors could never establish a plausible motive. If she was too overwhelmed by the demands of parenting Andrew, as they told jurors, why hadn’t she terminated the adoption process?
During oral arguments before the CCA earlier this year, Overton’s appellate attorney, Cynthia Orr, asserted that lead prosecutor Sandra Eastwood had been so intent on winning a conviction that she failed to disclose exculpatory evidence—a charge Eastwood has strenuously denied. According to Orr, the defense was never told about a container of Andrew’s vomit that had been collected on the day he was hospitalized. Its low sodium level corroborated Overton’s account that on the day Andrew fell ill he’d likely ingested the salt on his own, when she briefly dozed off that morning, and not that afternoon, when he was under her supervision.
Yet the seventeen-page decision the CCA handed down in September largely laid the blame for Overton’s conviction on her defense attorneys for failing to call a key witness, a world-renowned expert on salt poisoning. As to the assertion that prosecutors withheld evidence, Judge Lawrence E. Meyers demurred, writing, “Because we are granting relief on Applicant’s first claim of ineffective assistance of counsel, there is no need for us to address the second issue of whether the state failed to disclose exculpatory evidence.”
Judge Cathy Cochran, though, did not hold back in her criticism of the prosecution. In a blistering concurring opinion, she took Eastwood to task, noting that the prosecutor had conceded during a 2012 evidentiary hearing that she had been an alcoholic and had also been taking prescription diet pills that affected her memory at the time of Overton’s trial. “[Eastwood] repeated seventy-two times that she did not recall or did not know the answers to questions concerning the investigation or trial of applicant,” Cochran observed. The judge, who noted that Eastwood was later fired for unrelated ethical violations, did not stop there. Cochran went on to explain how the second-chair prosecutor, an assistant DA named Anna Jimenez, had taken the stand during the hearing to testify that Eastwood “told her that ‘she would do anything it would take to get an advantage over the Defense,’ including sending a ‘spy’ to applicant’s church group to learn the defense strategy. The second-chair prosecutor testified that the lead prosecutor was not ethical and was ‘not truthful.’ She said that the lead prosecutor told her that no vomit samples had been saved as evidence.”
Sadly, the themes that run through the Overton case—from tunnel vision to an overly aggressive prosecution—are hardly unique. Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.
Despite cases like Brown’s, there is still resistance among some prosecutors to common-sense changes that would prevent such injustices from happening again. Consider the Michael Morton Act, which the Legislature passed in 2013 and Governor Rick Perry signed into law. It mandates that prosecutors share both incriminating and exculpatory evidence with the defense before going to trial. But this fall, Goliad County assistant DA Terry Breen wrote an impassioned critique of the act on the Texas District and County Attorneys Association’s user forum, calling it “ghastly” and asking that the TDCAA work to repeal the law. Breen argued that the law—which passed with the support of the TDCAA—was not only too costly to counties but also unnecessary. “Discovery in Texas prior to the Michael Morton Act worked very well,” he wrote, referring to the process that takes place before a trial in which the state and the defense can request evidence from each other. In fact, Morton’s case illustrates how bankrupt this notion is; the Williamson County DA’s office kept nearly everything from his attorneys, including police reports and witness statements that would have formed the backbone of his defense. This is also true of Graves’s case, which rested almost entirely on the false statements of the crime’s actual perpetrator, Robert Carter, whom investigators had pressured into naming a co-conspirator. Had Graves’s attorneys known of Carter’s recantations, he might never have been convicted in the first place.
Judging by the lack of support for Breen’s post on the TDCAA forum, his views are not, mercifully, shared by most of his peers in district attorney’s offices around the state. Still, though the Michael Morton Act has indeed brought about fundamental change, there is a great deal of work left to be done. For starters, the State Bar of Texas needs to radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist. The agency has a shameful record when it comes to disciplining prosecutors: a 2012 investigation by the Northern California Innocence Project found that in 91 criminal cases in Texas in which the courts decided that prosecutors had committed misconduct, not a single one of them was ever disciplined. The bar even failed to punish a prosecutor and a judge from Collin County after it came to light that they had been romantically involved during a 1990 capital murder trial in which the defendant, Charles Dean Hood, was handed a death sentence. And former Williamson County DA John Bradley faced no consequences for blocking Morton’s pleas for DNA testing for six years.
Perhaps more importantly, the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar. During the 2011 legislative session, Representative Lon Burnam, a Democrat from Fort Worth, introduced a bill that would have given prosecutors who engaged in misconduct qualified immunity—the same protection that police officers have—instead of absolute immunity. The bill, however, never made it out of committee. Such legislation would have helped to counterbalance the pressure prosecutors feel to rack up convictions and never admit mistakes. “Every professional incentive (reelection, promotions, election to higher office, high-paying jobs at white-shoe law firms) points prosecutors toward procuring as many convictions as possible,” noted Washington Post columnist Radley Balko earlier this year. “You get a system that not only fails to sanction bad behavior, but also often rewards it.”
In the meantime, Hannah Overton is still in prison after seven years behind bars. Nueces County DA Mark Skurka—who was not district attorney at the time of Overton’s trial—now has to decide how to proceed. He could retry her on capital murder charges, offer her a plea deal, or dismiss the case. In the coming weeks, Overton will likely be transferred from the maximum-security Murray Unit, in Gatesville, to the Nueces County jail, in Corpus Christi, where she will await a bond hearing. Whether or not she will be released on bail remains to be seen. Her husband, Larry, who has raised their five children on his own during her incarceration, is hopeful that she will be coming home soon. Their oldest child, Isaac, is now fifteen. Isabel, Ally, and Sebastian are thirteen, twelve, and ten, respectively. And Emma, who was still a baby when her mother was sent to prison, is now seven. “We’re anxious to see what happens next,” Larry told me.
Editor’s note: On October 18, 2014, Nueces County DA Mark Skurka announced that his office will retry Hannah Overton, adding “no jury, no trial judge, and no appellate court has ever found that…Overton is not responsible for the death of Andrew Burd.”