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

SHIRLEY PERSONS PIGOTT Petitioner

vs.

GREGG ABBOTT, JOSH MCCOWN AND JESS HOWELL Respondents

CASE NO. 12 CV 917

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:

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 2 nd indictment, adding a 1 st 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.

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.

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 cross-

examination 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.

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 (5 th Cir, 1985); U.S. v. Molina, 894 F2d 1453,

1454 (5 th 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.

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, (5 th 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.”

In this case the prosecutor showed “unbridled opportunism” during cross-

examination 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