IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION SHIRLEY PERSONS PIGOTT

Petitioner CASE NO. 12 CV 917 vs. GREGG ABBOTT, JOSH MCCOWN AND JESS HOWELL Respondents

MEMORANDUM OF AUTHORITIES ON CLEARLY ESTABLISHED FEDERAL LAW

Now Comes Petitioner Shirley Persons Pigott and presents case authorities on the violations of clearly established law, as alleged in her habeas corpus petition.

Petitioner claims that her conviction was obtained by violation of Fourteenth Amendment due process, which requires “fundamental fairness” in the trial of the case; that the denial of “fundamental fairness” resulted from a series of vindictive and/or intentional acts by the prosecutor for the objective of inflaming and prejudicing the jury against Petitioner. The sequence of the prosecutor’s conduct, Pre-trial and during Trial is as follows:

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PRE-TRIAL Admission of Vindictiveness by the Prosecutor Petitioner was pro se during pre-trial motions. Petitioner filed numerous pre-trial motions alleging illegal conduct by the prosecutor and the officers. Petitioner claimed the prosecutor and the officers were trying to illegally steal her car. After Petitioner filed motions claiming illegal conduct by the prosecutor and the officers, almost a year after the event on the highway, the prosecutor sought and obtained a 2nd indictment, adding a 1st degree felony (aggravated assault with a deadly weapon, against a public servant).

Before trial, the prosecutor openly admitted his vindictive motivation toward Petitioner because of the pre-trial claims. The prosecutor stated that his objective in the trial would be to vindicate the police officers; that he has personal vindictiveness toward Petitioner because of her claims of illegal conduct in her pre-trial motions.

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TRIAL Primary Jury Issue a) Petitioner’s stipulations b) Petitioner’s defense of “necessity” because of fear and c) Prosecution’s failure to present evidence of a reason why Petitioner would have been trying to avoid detention. These components made the crucial, critical question for the jury-Was Petitioner afraid on the highway or was she just arrogant and uncooperative on the highway? Petitioner’s Medical Disability Exhibit A, attached to the Petition for writ of habeas corpus, is the narrative report of Petitioner’s treating psychiatrist, Dr. Mathew Brams, Baylor College of Medicine. Dr. Brams was called as Petitioner’s first witness. He testified that Petitioner’s medical disability caused her to have uncontrollable fear during the event on the highway; that she was reacting to extreme anxiety, to a panic attack. Dr. Brams also testified that Petitioner’s disability could affect her during trial; that her disability would cause her to seize up and be unable to process information under stress or pressure.

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Prosecutor’s Conduct After Resting His case 1. After hearing Dr. Brams’ testimony that Petitioner’s medical disability would cause her to seize up under pressure, the prosecutor undertook Petitioner’s cross examination (over objections) in a manner that caused Petitioner to seize up and appear arrogant and uncooperative during cross-examination.

2. During final argument, the prosecutor argued that Petitioner was not afraid on the highway; that Petitioner’s arrogance and uncooperativeness during crossexamination is proof that she was just arrogant and uncooperative on the highway; that Petitioner thought she did not have to follow the instructions of the officer, because she is a doctor. The prosecutor argued: “Was she ticked off? This cop had the nerve to stop her and demand that she present her driver’s license, a lowly police officer daring to confront a medical doctor? You’ve seen her attitude. She’s arrogant with me. What do you think she treated him like?” (Ct Rep R, Vol. 4, pg. 162)

Petitioner’s Motion for Mistrial After the prosecutor finished his argument, Petitioner objected and moved for mistrial, based on the prosecutor’s intentional effort to inflame and prejudice the jury during cross-examination and final argument.

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PROSECUTORIAL VINDICTIVENESS Prosecutorial vindictiveness can be shown by direct evidence or by circumstantial evidence from a review of the entire proceedings. In this case we have both direct evidence (prosecutor’s admission) and a series of acts that tend to show vindictiveness as a response to Petitioner’s exercise of her rights in defending her case. The due process concept of prosecutorial misconduct or vindictiveness holds that it is a due process violation of the most basic sort to punish a criminal defendant because he has done what the law plainly allows him to do, and that it is patently unconstitutional for a prosecutor to pursue a course of action with the objective of penalizing the defendant for relying on his legal rights in the processes of his case. U.S. v. Ward, 757 F2d 616, 619-20 (5th Cir, 1985); U.S. v. Molina, 894 F2d 1453, 1454 (5th Cir, 1990) However, not all violations of due process justify a ruling of denial of fundamental fairness in a habeas case. The courts review all of the prosecutor’s conduct in the proceedings to determine if the prosecutor’s misconduct was a crucial, critical factor in the jury’s determination of guilt.

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PROSECUTOR’S JURY ARGUMENT The prosecutor continued his vindictiveness toward Petitioner into the trial of the case. The prosecutor was opportunistic during cross-examination and during final argument in his effort to inflame and prejudice the jury. The prosecutor violated due process requirements by intentionally inflaming and prejudicing the jury against petitioner in his final argument. However, not every improper jury argument justifies a ruling of denial of fundamental fairness in a habeas case. The case of Whittington v. Estelle, 704 F2d 1418, 1422, (5th Cir, 1983) tells us the requirement for a ruling of denial of fundamental fairness in a habeas case. A ruling of denial of fundamental fairness in a habeas case is justified upon “a due process violation (with) repeated impropriety in the context of a trial already largely robbed of dignity due a rational process by an unbridled opportunism of the prosecutor….In making our determination of the existence or lack of fundamental fairness.., this Court must look at the prosecutor’s argument in the context of the entire trial… and determine whether the argument was a crucial, critical, highly significant factor in the jury’s determination of guilt.”

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In this case the prosecutor showed “unbridled opportunism” during crossexamination and argument in his effort to inflame and prejudice the jury; the prosecutor’s improper argument impacted the crucial, critical issue for the jury’s determination of guilt; the determination of whether Petitioner was afraid on the highway or just arrogant and uncooperative.

Respectfully Submitted,

Jerry S. Payne St. Bar #15658000 11505 Memorial Dr. Houston, Texas 77024 713-785-0677 Fax-713-781-8547

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