Said & Done

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Kudos

In October, Chris Raesz tried an Unlawful Restraint with Exposure to Serious Bodily Injury and an Aggravated Assault with a Deadly Weapon, both arising out of the same incident in Denton County. Client was on felony parole out of Colorado for what we call Intoxication Manslaughter. The initial story from the victim to the cops was that client and she had an argument, he hit her in the eye, she fell down, he helped her clean up then came back with a large knife, took her to the garage, obtained duct tape, taped her hands and feet, all the while threatening her with the knife. Amazingly, the victim had prepared her own affidavit of non-prosecution for presentation to the grand jury. That affidavit included that she struck client first while he was holding their child and he only hit her in self-defense, and that the duct tape was not used to restrain her on the night in question but earlier in adult ventures. Client was sure the victim would take the 5th at trial due to her false report, as she had been visiting him in jail during this time. She not only did not take the 5th; she testified to the initial story (and more) and admitted creating the affidavit of non-prosecution. Client took the stand in order to establish his self-defense and defense of his child, which was problematic due to his parole situation. Cross of the officers involved crime scene investigation and lack of followup investigations despite new information. Jury came back with two “not guilty” verdicts, and parole hold was lifted on client. Good work, Chris.

Zachary Maloney sent along word that Jim Hanley got a “not guilty” on a enhanced 25-to-life theft case. Instead of using the copper statute, the State indicted the defendant as just theft. The Brazoria County ADAs in 149th District Court couldn’t show value. Of course, he notes, the Jury went with a theory of their own. Either way, Zachary says Jim’s been on quite a win streak this year.

After more than 15 years behind bars, Kenneth Boyd Jr. was released from prison through the efforts of Gena Bunn of Holmes & Moore in Longview. In November, the Texas Court of Criminal Appeals in Austin issued an opinion vacating Boyd’s capital-murder conviction and life sentence and ordering his release. In 1999 Boyd was found guilty of capital murder and sentenced to life in prison despite the fact that there was no physical evidence linking him or any of his co-defendants to the murders. The State’s case against Boyd consisted essentially of a pair of jailhouse snitches who testified that Boyd confessed to them (both of whom have since recanted) and a handful of “eyewitnesses”—many if not all of whom were high on crack cocaine or other substances. In June, District Judge Charles Mitchell found that former ADA Karren Price had suppressed several items of evidence that would have helped Boyd, including a polygraph examination of a State’s witness indicating that he had information that another person was responsible. Also suppressed were letters sent from State’s witnesses to Price shortly before Boyd’s trial impeaching and flatly contradicting their trial testimony; offense reports indicating that another person besides Boyd was responsible for the murders; information that another State’s witness had failed a polygraph examination regarding his involvement in the murders then offered to “cut a deal” with the State for his testimony against Boyd; and evidence that this State’s witness had agreed to testify against Boyd in exchange for a sentence reduction in his federal case. He also found that Price had knowingly presented false testimony against Boyd. Great work, Gena!

Bill McKinney had an incredible string of victories re­cently—three NGs and a bar from prosecution in less than a week. Bill received the first two “not guilty” findings from a jury in a 2nd-degree possession of meth and a 2nd-degree possession of cocaine. The cases were consolidated for trial in the 108th. (The client was found under a bed with the dope lying next to him.) The other 2-word verdict came from a jury in the 320th. The charge was 3rd-degree possession of meth. It seems the client was sitting on 1.68 grams of meth, found when he was ordered to exit the vehicle. And then Bill found out that his client charged in the 181st with 3rd-degree possession of tetrahydrocannabinol (THC) had been discharged from further prosecution because of a finding of collateral estoppel after client received an NG verdict. Quite a week, Bill. Congratulations.

Kudos to Jani Masselli and her team for winning a sub­sequent writ for Cathy Lynn Henderson, convicted of capital murder and sentenced to death for killing a three-month-old baby, burying his body near Waco, and fleeing to Kansas City, Missouri. During trial, the medical examiner testified that the baby’s death could only have been intentional and not accidental, as Henderson asserted. However, in 2007, the CCA remanded the case for an evidentiary hearing during which six experts testified regarding new developments in the scienceof biomechanics. These witnesses testified that the type of injuries that the child suffered could have been caused by an accidental short fall onto concrete, as Henderson had always claimed. Dr. Roberto Bayardo, the medical examiner who testified at trial that Henderson’s position that the injuries had resulted from an accidental fall was false and impossible, testified at the evidentiary hearing that he now believes there is no way to determine with a reasonable degree of medical certainty whether the baby’s injuries resulted from an intentional act of abuse or an accidental fall. The trial court found that Bayardo’s re-evaluation of his 1995 opinion was based on credible, new scientific evidence constituted a material exculpatory fact and concluded that Henderson had proven by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of her new evidence. The CCA ruled the trial court’s findings were supported by the record and consequently granted relief in the form of a new trial.

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