memo on clearly established federal law
TRANSCRIPT
8/2/2019 Memo on Clearly Established Federal Law
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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 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.
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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 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