Monday, January 11, 2010

Meth hype by DEA Agent, prosecutor, gets life sentence overturned

Some 3-1/2 years ago I highlighted a case out of my hometown in Tyler where
two newlyweds were sentenced to life in prison for possessing 255 grams of meth. A DEA agent testified at trial that 255 grams was enough to get 45,000 people "high" -- "If those people were lined up side by side, they would form a line from downtown Tyler to Bullard about 17 miles, he said."
Last month the Texas Court of Criminal Appeals overturned punishment phase of the trial - on grounds of ineffective assistance of counsel because the defendant's lawyer failed to object to testimony by a DEA Agent Downing (first name omitted), as well as for failing to call an expert witness to rebut the absurdist claims about 255 grams of meth getting 45,000 people high..

The court also found the prosecutor in the case made prejudicial arguments during closing by telling the jury that "[p]eople are bringing [methamphetamine] through our county to its destination: Our kids and our family members, so it will poison them and turn them into addicts."
As I pointed out at the time:
Local media dutifully hyped the ridiculous claim. The lede in the local newspaper declared the couple was sentenced "for possessing enough Ice methamphetamine to get half of the population of Smith County high."

But is that true? That would mean that it only took .0056 of a gram -- or just over five one-thousandths of a gram -- for a person to get high on meth. By any measure, that's a big fat lie.
The DEA Agent in question just made those numbers up - they bear no relation at all to reality and anyone with his background definitely should have known better, which means he either lied in court or is utterly ignorant about widely known information that's central to his professional work as a drug investigator. In other words, Agent Downing either perjured himself or is too incompetent to wear the badge, anyway.

Quite frankly this decision in no small measure restores some of my faith that the Court of Criminal Appeals may yet shuck off its anything-goes-if-it-convicts mentality that's made it famous under Presiding Judge Sharon Keller and actually, occasionally insist that Texas defendants receive fair trials. The same type of over-the-top rhetoric was typical of the infamous Tulia cases, but no appellate court ever called them on it. I'd honestly come to think it was the sort of thing police and prosecutors just got away with, but perhaps the quantitative nature of the false statements by Agent Downing - debunkable as they were with the most basic, back-of-the-napkin math - made this case just a little bit too over the top to ignore.

Judge Cheryl Johnson wrote the opinion in which Meyers, Price, Womack, Holcomb, and Cochran joined. Judges Keller, Keasler and Hervey concurred.

22 comments:

Boyness said...

This is another example of how out of control this police-state is. They lie with ease. They lie with no fear, whatsoever, of retribution.

Anonymous said...

We are so glad, Grits, that your confidence is restored. The future of Texas depended on it.

Seriously, that's all it takes? Reverse a conviction and you are good? Sad.

Yes, the case deserved reversal. But, hey, how about focusing on the real reason: the defense lawyer sucked. Instead, you point the finger at the prosecutor, the judge, the Man, Society and Santa Clause, no doubt.

Anonymous said...

I wonder if this was in Skeen's court. This type of thing goes on routinely in his court. He allows people who are not qualified as experts to give expert opinions and allows a lot of other testimony that is barred by the rules of evidence. He routinely ignores the rules of evidence and the law to make sure the prosecution wins. For a good example of the way he runs his courtroom you can go the website for Patrick Kelly's attorney and see the 43 points of error that were included in the appellate brief in that case. Skeen made up an exception to the hearsay rule that doesn't exist. He allowed people who are not qualifed as experts to give expert opinions n and allowed other testimony clearly barred by the rules of evidence. Skeen is up for reelection and someone has actually had the courage to run against him. Unfortunately, with the help of a powerful, corrupt political machine and the local press he has many of the voters fooled. I'll be surprised if he is not reelected.

The Kelly case (otherwise known as the Mineola Swingers Club case) is before the appeals court in Houston, I believe, and at some point there will be oral arguments. I think they are trying to consolidate them with the other defendants in the case. I don't see how the appeals court can do anything other than overturn these convictions. When that happens it will be very embarassing for Skeen and the DA, Bingham (who, by the way, withheld evidence and even hid a witness so the defense coudn't subpeona him).

Anonymous said...

Well, I looked it up. It wasn't Skeen. It was Kent. I'm surprised.

Gritsforbreakfast said...

7:04, lots of people are to blame here. Bad defense lawyer, overreaching prosecutor, a DEA agent who made stuff up and a trial judge who allowed it all. I don't think it's a reach to be heartened that, at least for once, that kind of crappy process isn't allowed to stand unchallenged.

Also, I didn't say one reversed conviction and "I'm good," I said it's a signal the CCA "may yet" change its ways. It's not the end all be all, by any stretch, just an encouraging sign. But I think it's worth giving them credit when it's due if I'm going to criticize them when they're to blame.

Anonymous said...

Smith county specializes is judges who come out of the prosecutors office and never change their thinking.

Anonymous said...

Hey grits, while your blaming everybody, don't forget to blame the couple with 255 grams of meth.

Afterall, their the ones that made all of this possible.

You liberals....!!

doran said...

Anon 9:06, you're not making any sense; it is obviously past your bedtime.

Gritsforbreakfast said...

9:06 writes: "their (sic) the ones that made all of this possible"

Actually, that's not really true. Most criminal convictions never result in the Court of Criminal Appeals overturning the sentence. THAT requires errors on the part of officialdom, not the defendants, for that to occur. Appellate courts don't overturn sentences when the state did everything right.

Charlie O said...

How about we just end this ridiculous "war on drugs" in the first. I'm 50 years old, yet I can still buy the same drugs today in 2010 that I could buy when I was 20 in 1980. A gazillion dollars have been spent, countless people (and pets) have been murdered by police and prisons are overcrowded. Not a very successful "war" by any measure. It hasn't stopped drug use or availability one iota.

Anonymous said...

The prosecutor and witness stirred up a fearful cauldron of hatred and unleashed all the furies of hell that could be mustered and sent them in a flurry of fire and hatred, to consume the addicts.

Not to mention votes for a favorable budget next year.

Anonymous said...

Always found it interesting that assistant US attorneys take the testimony of a DEA agent with a grain of salt. A life of lies working underscover or trying to convince somebody to roll can carry over to testimony in a courtroom.

Of all the federal LE agencies, I have learned to trust a DEA agent the least but they would be the first group I'd go to if needing support from embassy staff while overseas if I had to personally deal with a family kidnapping, murder, etc. requiring some local professional back-up. :~)

Anonymous said...

You wouldn't know a police state if it tazed you.

T Kinney said...

Grits, could this be another case of prosecutorial misconduct on par with Pottawattamie County v. McGhee, where the government lawyers statement in defense of their actions was “There is no freestanding constitutional right not to be framed"? Or maybe like Blackwater http://bit.ly/5Isnaf or Broadcom http://bit.ly/8jvJnN , but without the media attention? Perhaps it is more like Shelnutt in Columbus, Ga. http://bit.ly/4vjkXw covered only by the local press. Could this be another case where, unlike the SCOTUS “blink” with it’s refusal to rule on McGhee, a court, however belatedly, saw through the misconduct and corrected the error following the lead of the courts in the other three cases mentioned.

To date not one of these prosecutors has received much more than a slap on the hand for their less than honorable conduct. The real issue IMHO is that if these less than honorable prosecutors have no fear of sanctions for their actions in the "big" cases, and the “no decision” by SCOTUS in McGhee has given them no reason to change their methods, just imagine how far they will go to convict a "little" guy who doesn't have the resources to fight back. Who speaks out for them? SCOTUS blinked and prosecutors like Kevin Kohl (Blackwater) and Jason Ferguson (Shelnutt) among others, will continue un-checked.
Anon 9:06 said “You liberals....!!” There has to be a knucklehead in every crowd I guess because that’s what it takes to consider those who stand up for “fairness”, “equal justice under the law” “rule of law” just to name a few, liberal. Personally, I am a little to the right of Attila the Hun on most issues but I sure as hell hope Grit’s and a few more that you call “Liberal” are around to stand up when they come for you.
What?………you think it can’t happen?

Anonymous said...

War on Drugs or the War on Terror is all the same, it's meant to take away American rights. When you have ignorant Americans that allow this to happen, then the government will continue to rape its citizens.

America has too many ignorant cowards, that would trade their freedom for security.

TDCJ EX said...

T Kinney said “
“I sure as hell hope Grit’s and a few more that you call “Liberal” are around to stand up when they come for you.
What?………you think it can’t happen?”

That is a big part of the problem no one thinks these things will happen to them because they are not.. insert scapegoat despised group here ….. . When they do they wonder why they cannot find away out of the Kafkaesque nightmare they landed in . They do not understand that taking away rights of one group takes them away from all of us .

I might not like or agree with some one but I will stand up for your rights .That includes the right to a fair trail due process and the right not to be framed set up wrongly convicted , or any of their constitutional right t violated to secure a conviction regardless of reason . It is time to hold the state and those acting on it's behalf accountable

Anon 2:43 is right we are giving up our rights for a false sense of security . Who protects us from a very powerful state or who watches the watchers? They forget the state can become a far more dangerous criminal than any one in our prisons today

TDCJ EX said...

T Kinney said “
“I sure as hell hope Grit’s and a few more that you call “Liberal” are around to stand up when they come for you.
What?………you think it can’t happen?”

That is a big part of the problem no one thinks these things will happen to them because they are not.. insert scapegoat despised group here ….. . When they do they wonder why they cannot find away out of the Kafkaesque nightmare they landed in . They do not understand that taking away rights of one group takes them away from all of us .

I might not like or agree with some one but I will stand up for your rights .That includes the right to a fair trail due process and the right not to be framed set up wrongly convicted , or any of their constitutional right t violated to secure a conviction regardless of reason . It is time to hold the state and those acting on it's behalf accountable

Anon 2:43 is right we are giving up our rights for a false sense of security . Who protects us from a very powerful state or who watches the watchers? They forget the state can become a far more dangerous criminal than any one in our prisons today

Anonymous said...

6:07 Well said.

Boyness said...

Anonymous said...

America has too many ignorant cowards, that would trade their freedom for security.

1/12/2010 02:43:00 PM
==================================
TEXAS has too many ignorant cowards who HAVE traded there freedom for security and many of the dumb-asses post on this board!

Anonymous said...

You are an excellent case in point, Boyness.

Boyness said...

Anonymous said...

You are an excellent case in point, Boyness.

1/12/2010 09:13:00 PM
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And Chickenshit's continue to hide behind an anonymous veil.

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