4.01.2012

A Truth Glasses look at Texas – The absence of Physical Evidence gets person convicted

Harris County, Texas Jury Assembly
Harris County, Texas Jury Assembly (Photo credit: Wikipedia)

            Readers, this article has many facets that are known and unknown, it’s about a case where a person was sent to prison without the use of physical evidence in their conviction.  A case that has spawned controversy, possible perjury of testimony and resulted in a banner being flown over a courthouse that caused this author to pull out his truth glasses for a closer look.  We will first present what we know has occurred in this case, then we will take a look at a few of the possible statutes that may have influenced such a decision and finally hope to gain a unique understanding along the journey of words and court systems.  It is this author’s sincere hope for justice to be finalized in the case we are about to share, which is by permission was allowed to be published and is public knowledge, the web-link will be provided at the end of this article. Truth Glasses on and we now go into the realm of Justice and Court Systems, in search of why.


Harris County, Texas Criminal Justice Center E...
Harris County, Texas Criminal Justice Center Español: Centro de Justicia Criminal del Condado de Harris (Photo credit: Wikipedia)
            Family violence is an issue that always raises eyebrows, we hear of spouse on spouse fighting, child abuses, verbal and mental abuses as well as a host of horror stories that may surround them and while we see the negatives being developed into color pictures of the crimes, sometimes within our system of justice, the innocent suffer.  In Harris County, Texas our eyes are focused on a case that certainly warrants review by our readers and possibly by a higher court in this state.  According to an article that was posted online (mmalaw.com) a possible travesty of justice has occurred.
The Known:
            Family violence has become such a problem in Harris County Texas that the District Attorney and Court system have developed a zero tolerance that sends most that are convicted packing off to prison.  A man within this county was sent to prison convicted solely on testimony of others involved in the case.  During testimony, it was noted that some said the perpetrator had a gun and others also testified that there was no gun present during the commission of this crime.  The two prosecutors overseeing this case, Lynn McClellan and Rifian Newaz continued to bring witness after witness upon the stand to give testimony against the accused and no one presented any physical evidence in relation to the matter.  On the one and only open records request, there were only 3 pieces of paper that could be produced, one of which was a background check on the accused person’s brother.  Several attempts to contact the DA have been attempted, including the presentation of new evidence, including possible perjury.  According to the article, all of the attempts to right the wrong fell on deaf ears and the conviction stood as of 2006.  In 2010 new papers have been introduced, one of which was a confession that the whole thing was intentionally set up to convict the innocent man.
            The next attempt to correct this situation was in a letter written to Patricia Lykos of the District Attorney’s office and a writ submitted to the judge who only eliminated any probation requirements but upheld the conviction, further frustrating the attempts to prove innocence.  The next logical step, hire a plane to pull a banner and fly it over the courthouse, delivering a direct message “HCDA allows perjury to convict the innocent” and have since invited others to take part in a an event scheduled for January the 19th (year not mentioned in article), inviting those who attend to bring camera’s and
WASHINGTON - OCTOBER 06:  Harris County, Texas...
WASHINGTON - OCTOBER 06: Harris County, Texas Sheriff Adrian Garcia (2R) talks about the Department of Homeland Security's Secure Communities program during a news conference with (L-R) Homeland Security Secretary Janet Napolitano, Los Angeles County Sheriff Lee Baca and Immigration and Customs Enforcement Director John Morton October 6, 2010 in Washington, DC. Morton said that almost 400,000 illegal aliens had been removed in fiscal year 2010, half of whom were convicted criminals. Napolitano also announced that the Secure Communities program is in 660 jurisdictions and that ICE has audited more than 3200 employers suspected of hiring illegal laborers. (Image credit: Getty Images via @daylife)
record the event where the wrongly accused and innocent may voice their opinions of their own zero tolerance, a show down that no doubt will make history, pending no one gets violent or crazy and sticks to the facts. 
The Unknown:
            The man in question’s identity, for obvious reasons of privacy, however, it seems as though this one case is not singular in the realm of wrongful convictions.  Looking into the realm of the connections within this context, my eyes fell upon another website that validates the banner flying overhead and the true distaste of misguided justice.  According to another online site in relation to this case (americaswrongfullyconvicted.com) the judge and prosecutor were given several bits of information, including testimony that had changed from interview to trial and yet was ignored, including owning up to flying the banner overhead and being somewhat straight forward about suing them if they did something illegal or against the law.  The whole picture is coated with references to section 37 of Texas Penal Code.  Other unknowns are what the man in question was convicted of specifically, how long the sentence, how many counts, what family member was affected, who else is involved in the innocent pleas, why isn’t the case being sent to appellate court, all of these and more are racing through the thoughts of what went wrong here, so let’s start with looking at the Penal code itself:
       
     Section 37 of the Texas Penal Code states:
Sec. 37.02.  PERJURY.  (a)  A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:
(1)  he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath;  or
(2)  He makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.
(b)  An offense under this section is a Class A misdemeanor.

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.


Sec. 37.03.  AGGRAVATED PERJURY.  (a)  A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1)  Is made during or in connection with an official proceeding; and
(2)  Is material.
(b)  An offense under this section is a felony of the third degree.

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.


Sec. 37.04.  MATERIALITY.  (a)  A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.
(b)  It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declaring mistakenly believed the statement to be immaterial.
(c)  Whether a statement is material in a given factual situation is a question of law.
            This is a very interesting view into the law of perjury where the definition of what is considered material and what constitutes perjury are both poignant as a key factor comes into play of basic crime: Actus Reus and Mens Rea , first the thought then the follow through of committing the crime.  According to the latter online article, several pieces of new evidence were handed to the district attorney’s office, making this author wonder why not present it to a court of appeals and not the county attorney, if the evidence to the contrary is as strong as what is being suggested.  Considering this case was centered on family violence, in the penal code search that was conducted, the following was discovered:
Sec. 25.11.  CONTINUOUS VIOLENCE AGAINST THE FAMILY.  (a)  A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.
(b)  If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred.  The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).
Shelby County Courthouse, Memphis, Tennessee, USA
Shelby County Courthouse, Memphis, Tennessee, USA (Photo credit: Wikipedia)
(c)  A defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the offense under Subsection (a) and an element of which is any conduct that is alleged as an element of the offense under Subsection (a) unless the other offense:
(1)  Is charged in the alternative;
(2)  Occurred outside the period in which the offense alleged under Subsection (a) was committed; or
(3)  Is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a).
(d)  A defendant may not be charged with more than one count under Subsection (a) if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed against a single victim or members of the same household, as defined by Section 71.005, Family Code.
(e)  An offense under this section is a felony of the third degree.
            This section was found toward the latter of the penal code listing, as there are many parameters listed about family violence, issues such as Bigamy, Child Custody, Prohibited Sexual Conduct, Criminal Non Support, Harboring a Runaway Child, Human Trafficking in Children as well as various other listings, again this presents an unknown in this case as we do not know what the man was charged with, other than a Family Violence related charge.  One would certainly hope that if this is a case of sexual nature that the forensics investigations would come into focus, but since it is not listed in any of the research that was done, I feel safe in saying this may not be of that nature. 
            Something of interest that was discovered in relation to the details surrounding this particular case and the absence of physical evidence, which certainly raises the eyebrows of this author, according to Texas statute Chapter 2, Code of Criminal Procedure it states:
When a peace officer investigates a family violence incident or who responds to a disturbance call that may involve family violence shall make a written report, including but not limited to:
(1)AAthe names of the suspect and complainant;
(2)AAthe date, time, and location of the incident;
(3)AAany visible or reported injuries;
(4)AAa description of the incident and a statement of its disposition; and
(5)AAwhether the suspect is a member of the state
military forces or is serving in the armed forces of the United
States in an active-duty status.
            In recent weeks, this author has seen in the news several travesties of justice, including the “Stand your ground” debate happening in Florida.  This author has great concerns for the interpretation and application of our laws and wonders if political hype or prestige may be at the root of some of the items in these cases.  Either case, whether debated or not, the word of the law is exact in its definition and when judges ignore basic concepts of application or fail to think critically in the evidences being presented, justice scales get tipped to one side.  We should never let injustice stop us from pursuing the truth and the truth thanks in part to technology is only a short search away, however, caution must be exercised as public opinion is not law and facts can be biased or bent depending on who types them up or where they are presented.  My sincere hope is for justice to be done, if the man in question is truly innocent, much like we all just knew Kobe Bryant and Michael Jackson were innocent in their cases as well.
http://www.statutes.legis.state.tx.us/?link=PW (has drop down boxes to select penal, civil and other codes)


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