Alcohol, Lies, and Ambition: Another Texas 'Justice' Outrage

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A Texas jury
in 2007 believed prosecutors that claimed Hannah
Overton deliberately force-fed salt into her foster child
(whom
she and her husband were going to adopt) four-year-old Andrew Burd
until he became so ill that he soon died. Overton received the sentence
of life without parole and is in prison.

The lead prosecutor,
Sandra Eastwood, had desperately wanted to win and had told her
second chair, Anna Jiminez, later would testify under oath that
Eastwood had told her, "I will do anything to win this case."
Before the trial, Eastwood, the police, and, of course, the local
media, already had demonized Overton and her family. During the
trial, the prosecutors, judge, jurors, and the media pointedly ignored
the very complex medical evidence that pointed toward the child
having a rare disorder, and why not? These are people who hate complexity;
simple narratives and villainous witches are much more preferable,
especially when the accused might have religious beliefs that "sophisticated"
people might discard.

The Overtons
are Pentacostals and to Progressives that populate the mainstream
media, Pentacostals are even stranger than men from Mars and have
no place in a Progressive society. To make matters even worse, Nueces
County District Judge Jose Longoria clearly sided with the prosecution
and ensured that at best it would be a show trial. Jurors did what
Texas jurors usually do: ignore any exculpatory evidence and convict,
many times sending the accused to the execution chambers that are
so frequently used in the Lone Star State.

Yet, things
did not seem to make sense. Hannah Overton had no police record,
was highly-regarded in her church, and had never engaged in any
acts of violence against her children. Nonetheless, jurors and Longoria
believed Eastwood and Jiminez when they claimed Overton somehow
snapped under the pressure of having a fifth child and killed her
soon-to-be-adopted son.

As often is
the case in Texas, there was a story that was not told, and evidence
that neither jurors nor the defense had seen, but that prosecutors
knew. But Nueces County prosecutors also knew something else: Sandra
Eastwood was an alcoholic and drug addict, and was well-known for
lying. She was ambitious, and often impaired, and those two characteristics
meant that defendants, and especially high-profile defendants like
Hannah Overton, would be tried in circumstances not unlike what
was known to happen in communist countries like the former U.S.S.R.

Prosecutors
are officers of the court, and they also are required by law and
by the rules set by the Texas State Bar not only to act ethically,
but also to report unethical or dishonest actions of themselves
or their peers to the authorities. Instead, as is usually the case
in all prosecutorial offices in this country, both state and federal,
the "ministers of justice" of Nueces County were silent,
as they protected their own.

Anna Jiminez
knew a lot of things about Eastwood, and later after Jiminez was
elected Nueces County District Attorney, she fired Eastwood. As
second chair, she knew the case file and she claimed later that
she suspected Eastwood was withholding evidence in violation of
the Brady ruling by the U.S. Supreme Court, and by the Rules of
Conduct for prosecutors in the State of Texas. But while Jiminez
reported Eastwood to her superiors, according to later testimony,
she never reported Eastwood to the Texas State Bar, as was required
by the rules of conduct that govern her as a lawyer and as a prosecutor.
(Not surprisingly, Eastwood's superiors did nothing. They enjoyed
winning and if a few innocent people went to prison, that was collateral
damage. And, anyway, everyone already knew that Hannah Overton
was a monster.)

Fortunately
for Overton, a number of people were not willing to accept this
conviction and began their own investigations. The best journalism
was done by Pamela Colloff of Texas Monthly, who had this
excellent and lengthy article in January
of this year, and readers
can find the particulars of the case if they so choose. Instead,
I will deal with the police and prosecutorial abuse that sent Hannah
Overton to prison for a "crime" that never happened.

Nonetheless,
one cannot blame police for being suspicious when the four-year-old
child was brought to the emergency room and then later died. Colloff
writes:

The
death of a child — particularly a sudden, unexplained
death in which abuse is suspected — evokes strong emotions, even
among seasoned investigators, doctors, forensics experts, and
prosecutors. A more thorough investigation would have uncovered
ample evidence to suggest that Andrew had an undiagnosed eating
disorder, raising the possibility that he had unintentionally
consumed too much salt on his own. But law enforcement officials
are accustomed to handling child abuse cases, not medical mysteries,
and salt poisoning is rare enough that most emergency room doctors
will never encounter a case during their careers. Against the
backdrop of possible abuse, authorities wasted little time. Larry
was charged with injury to a child for failing to get Andrew timely
medical attention. The onus for the boy's death fell on Hannah,
who was charged with capital murder.

As they do
in so many situations, the local journalists acted as little more
than stenographers. Writes Colloff:

Corpus Christi's
introduction to Hannah came the following week, when she and Larry
were arrested and led past a bank of TV cameras outside the Nueces
County jail. News reports that followed, prominently featuring
their grim-faced mug shots, cast the Overton home as a house of
horrors. ("More shocking details on abuse suffered by four-year-old
before death," began one breathless report.)

Colloff adds:

The media
coverage of the case stirred widespread outrage. The Corpus
Christi Caller-Times's online comments section filled with
the vitriol of readers, some of whom called for Hannah to receive
the death penalty. ("You can just tell by looking at her
how evil she is," one wrote.) Fueling the public's antipathy
was an affidavit written by a CPS child abuse investigator named
Jesse Garcia, who claimed that Hannah had admitted to forcing
Andrew to drink two cupfuls of "chili with water" and
quoted her as saying that she then "beat the shit out of
him." Garcia never produced any documentation or witnesses
to corroborate his claim, and internal police memos show that
law enforcement officials doubted the veracity of his story. Hess
disavowed Garcia's account at a court hearing regarding the Overton
children, and prosecutors never entered Garcia's affidavit into
evidence or called him to testify at Hannah's trial. (He was subsequently
fired by CPS after having three car accidents on the job in less
than six months.) But the damage was done: that Hannah had confessed
to force-feeding Andrew and beating him was repeated, uncorrected,
on the local news. (Emphasis mine)

Rudy Giuliani
said during his infamous Wall Street prosecutions in the late 1980s
that once he made the accusations, the media would do his work for
him. Whether it was the "sophisticated" New York media,
such as the New York Times or Wall Street Journal,
or the newspapers and television stations near Corpus Cristi, the
relationship between prosecutors and the press has been insidious.
Journalists rush to judgment, as they did in the case against Michael
Milken, the Duke Lacrosse Case, and the case of Hannah Overton.
Later, after the truth comes out, media representatives claim that
they have "learned our lessons" and promise not to jump
to conclusions. And then they repeat the process again and again.

In the area
of "justice" and criminal accusations, narratives are
a powerful force, and most journalists and government agents like
to keep them simple: Michael Milken and Jack Abramoff were greedy
Jews who lost their way and broke the law to get rich; the Duke
lacrosse players were "privileged" white "jocks"
in a violent sport who brutally beat and raped a poor black woman
because they believed they were so "privileged" that they
could get away with it; George Zimmerman was a white racist who
hated blacks and gunned down Trayvon Martin in cold blood. The simple
stories were so compelling; evidence that undermined the
narratives was ignored or shouted down.

And so it was
with Overton. The police and prosecutors had their narrative, and
they were not going to let their prey go free, and the media simply
did what it always does. But the prosecution also withheld evidence,
as was discovered in an evidentiary hearing that ended last month.
Yes, while Texas
is
a place where
at least two innocent men
have been
executed recently
, and while prosecutorial
misconduct has dominated other wrongful convictions in that state
,
even the Texas State Court of Criminal Appeals decided that the
evidence that jurors said convicted Overton was questionable, and
that the court needed to examine what had happened.

For example,
after he was brought into the hospital, Andrew vomited and doctors
took samples, but the defense never was told about it nor given
any information. Colloff explains:

Forensic
pathologist Judy Melinek, an assistant medical examiner in San
Francisco who had testified at Hannah's trial, then took the stand
to explain how critical this sample would have been to understanding
exactly what had happened to Andrew. Determining the precise makeup
of his stomach contents and the time they were collected, she
said, would have been pivotal in a case in which the defendant
was accused of poisoning the victim. After reviewing all the evidence,
Melinek said, she firmly believed that Andrew had ingested a fatal
amount of salt on his own. Her opinion was bolstered by the testimony
of Edgar Cortes, an emergency medicine pediatrician who had seen
Andrew twice before his death. Cortes maintained that he had informed
Eastwood prior to trial that the boy had suffered from significant
cognitive delays. These delays, Cortes now testified, put Andrew
at greater risk for eating inappropriate items and ingesting something
lethal. Yet Andrew was portrayed during the trial as a normal
four-year-old. As for why the jury never heard his medical opinion,
Cortes stated, "I felt like the prosecution had its own theory
about what happened."

At the evidentiary
hearing ordered by the appeals court, Dr. Michael Moritz, one of
the world's leading experts on salt poisoning, told the court that
none of the scenarios painted by the prosecution made sense, given
all of the cases of salt poisoning he had seen:

Intentional
salt poisoning, the doctor went on to explain, is extremely rare.
When it does occur, the victims are often bottle-fed babies whose
food supply can be easily tampered with. Moritz stated that there
was only one documented case in which an older child — a five-year-old
— was poisoned with salt, and there were obvious signs of a struggle,
including lacerations to his lips and gums. Yet Andrew had no
such lacerations. Typically, Moritz added, someone who salt-poisons
a child is mentally ill or a drug addict and has a well-documented
history of child abuse. "So what we're seeing in this case
does not fit with any cases of intentional salt poisoning in the
literature," Moritz said.

Judge Longoria
periodically glanced down at the doctor when he spoke of children
poisoning themselves, studying him with skepticism. Moritz described
how "voluntary salt intoxication" almost uniformly happened
to children who fit a narrow profile: they were between the ages
of one and six, they had been in the foster system or were from
abusive homes, and they had some form of eating disorder, such
as pica. Andrew, who had tried to eat everything from cigarette
butts to glow sticks to toothpaste, fit this profile well.

Moritz had
not testified at Hannah's trial, and his testimony would seem to
have been authoritative, but prosecutors Doug Norman and Bill Ainsworth
claimed that there was nothing new and that the jury's verdict should
stand no matter what. And then Sandra Eastwood took the stand.

Eastwood admitted
to being a recovering alcoholic who abused prescription diet pills
during the trial. (Notice that while prosecutors will go after others
who do the same, Eastwood got a free ride.) While she claimed to
have turned over everything to the defense, it was clear that she
was less-than-competent to give any useful information at all:

Under withering
questioning from (attorney Garry) Goldstein, Eastwood answered
"I don't know" or "I don't remember" 72 times
when asked whether she recognized notes written in her handwriting,
emails sent from her own account, and papers signed with her signature.
"I have trouble remembering phone numbers," she said.
"I have trouble remembering what I had for lunch yesterday.
I think that's normal. I had hundreds of conversations and there
were thousands of documents, so I don't remember specifics."

Goldstein
became so exasperated with her that he asked if she remembered
the trial itself. "You recall the trial, do you not?"
he said. "The individual got life in prison."

"The
question is . . . ?" said Eastwood.

"Do
you remember the trial?" Goldstein asked, his voice rising.

"Yes,"
she replied.

"It
ended in life without parole," Goldstein scolded. "That
means they spend the rest of their life in prison. You remember
cases that have those kinds of consequences, don't you?"

"Yes,"
she said softly.

When Anna Jiminez
took the stand, she said that she believed that Eastwood "was
not truthful," and that Eastwood had told her there had been
no vomit or vomit samples taken. She admitted that she had no proof
of Eastwood's alleged misconduct, but then added that the kind of
circumstantial evidence that made her believe Eastwood had lied
was the kind of evidence that gets people convicted in criminal
court.

With the hearing
ended, prosecutors parroted their own views that the hearing had
produced nothing to make them change their minds about Hannah Overton's
guilt. However, it is a very rare prosecutor who even admits that
any conviction was wrong and Texas prosecutors are, well, Texas
prosecutors: even when the evidence against them is overwhelming,
they make up fantasy stories or just lie.

I have no idea
how this case will end. Judge
Longoria, as one might expect, ignored all of the medical evidence
given to him
and recommended
that Overton not receive a new trial
.
However, he does not have the final say in this situation. In retrospect,
there was no way that Longoria ever would admit to having made errors
during Overton's 2007 show trial, and it is a rare judge anywhere
that will admit to having been wrong. Nonetheless, I imagine that
with the media now questioning the verdict with the same ferocity
that they once condemned Overton, even the Texas courts cannot ignore
the firestorm. So, while it seems certain that Longoria will claim
that "no new evidence" was introduced during the hearing,
his superiors will overrule him.

As I see it,
however, this case is much more than just another example of prosecutors
bringing junk science into the courtroom and trying to make facts
fit their narratives. The real story is that nothing is done about
it, and that is because the U.S. Supreme Court — and especially
the conservative wing — has torn down all of the fences that are
needed to give ordinary citizens an opportunity to keep police,
prosecutors, and judges honest.

In decision
after decision, the SCOTUS has ruled that prosecutors must be given
absolute immunity from lawsuits filed by people wrongfully
convicted. True, the high court has claimed that official remedies
exist such as criminal prosecution for wrongdoing or discipline
by various state bars, including disbarment.

While this
may sound good, one should remember that the disbarment of Duke
lacrosse prosecutor Michael Nifong was extraordinary precisely because
such actions by a state bar are extremely rare. Two years ago, I
spoke to a member of the Georgia State Bar about extreme misconduct
by two prosecutors in the district where I once lived, citing chapter
and verse from the Georgia State Bar Rules for Prosecutors, and
the woman to whom I spoke blew it off. "They were just doing
their jobs," she replied.

I asked, "Do
you mean to tell me that suborning perjury (and the perjury was
obvious, and some of the dishonest witnesses even have admitted
to lying since the particular trial), lying to jurors during the
closing arguments, making outrageous public comments, disrupting
the trial with catcalls and loud noises, fabricating evidence and
such are u2018their jobs'?" She hung up.

While it may
sound highly official that prosecutors, police, and judges have
government agencies which can levy charges and punishment upon them
when they engage in misconduct, in truth, these agencies really
are the proverbial foxes guarding the hen houses. Lawsuits filed
by people actually injured by misconduct, however, are the only
real mechanism that people outside the employment of government
can employ to gain at least some matter of redress. Texas
happens to be a big offender
, but the problem is universal in
this country.

Government
agents in the "justice" system protect their own, as those
entrusted with overseeing wrongdoing within their ranks operate
according to a perverse logic: if the public were to see just how
often misconduct and wrongdoing are part of the prosecutorial process,
then the public would lose confidence in the honesty of the people
engaging in misconduct and wrongdoing, and then might question that
system that sends innocent people to prison or even their deaths.
Got that?

Thomas DiLorenzo
has written more than once that the government now has become the
final judge and arbiter of its own actions, which destroys any meaningful
systems of accountability. While government repeatedly tears down
the fences that restrict the actions of government agents, it increasingly
is erecting arbitrary fences around everyone else who is not part
of the "club." In the situation of prosecutorial misconduct,
the problem is not "a few bad apples," as prosecutors,
judges, and the media tell us ad nauseum.

No, the barrel
itself is rotten, and the few good apples that are left either are
corrupted, compromised, or get out before they lose their souls.

June
5, 2012

William
L. Anderson, Ph.D. [send him
mail
], teaches economics at Frostburg State University in Maryland,
and is an adjunct scholar of the Ludwig
von Mises Institute
. He
also is a consultant with American Economic Services. Visit
his blog.

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