February 23, 2006
Double jeopardy for Andrea Yates?

Andrea Yates' attorney is alleging prosecutorial misconduct in the matter of Park Dietz's bogus testimony.

In court papers filed Monday, attorney George Parnham said prosecutors in her original trial were reckless, if not intentionally misleading, when they used testimony they had reason to believe was false.

Prosecutors knew that testimony by psychiatrist Park Dietz about an episode of the television series Law & Order — regularly watched by Yates — was false during the original trial in 2002, Parnham alleges.

Dietz testified then that one Law & Order episode portrayed a woman who drowned her children. The episode, he said, aired shortly before Yates drowned her five children.

After Yates was convicted, it was learned that no such episode was ever produced.

Parnham's motion contends that Yates should not have to stand trial again because of this. I'm not a lawyer, but what is being alleged here sounds an awful lot like suborning perjury to me. Help me out here - is this from the standard defense attorney bag o' tricks, or is this as remarkable as I think it is?

Posted by Charles Kuffner on February 23, 2006 to Crime and Punishment | TrackBack

I am a defense attorney. I must admit, when I first heard the headline, I was dubious. Double Jeopardy can attach if the prosecutor causes a mistrial recklessly or intentionally. They might do this is they feel the trial is going badly for them and want to start over. In this case, I wondered how Parnham would get there. But, as I thought about it, the Dietz angle occurred to me, and in fact that is what he is saying.

Obviously, the DA was not TRYING to get a mistrial, but if Parnham can show the DA knew this testimony was objectionable, and therefore worthy of a mistrial, the punishment would be the same.

You are right in your suspicion. If the DA knew the testimony was false, it would amount to subourning perjury. This will be tough for Parnham to prove, but clearly worth a try.

Posted by: RedScare on February 23, 2006 2:37 PM

I think in most places, even if it were true that the prosecution intentionally used false testimony (that is, suborned perjury), the defendant would only get a new trial, not a dismissal. But even in those places, courts might have the power to dismiss.

But each state has its own rules about these things, and I don't pretend to have a clue what a Texas court might do. Not ever.

Don't know what you mean by standard "bag o' tricks." There are US Supreme Court cases on prosecutors' presenting false testimony going back many decades. The claim that this happened is, of course, more often made than it is upheld. But sometimes it is upheld -- the questions here are, how bad was the conduct, and what is the proper remedy for it.

Posted by: David in NY on February 23, 2006 2:40 PM

To second what RedScare said -- there is Double Jeopardy precedent for dismissing the case if the prosecutor made an error with the purpose of aborting a trial that was going badly, and thus forced the defendant to undergo a second trial (violating the "twice tried" prong of the Double Jeopardy prohibition). This doesn't seem exactly to fit here, but if the prosecutor intentionally used false testimony, maybe it does -- or maybe dismissal is the appropriate remedy for misconduct given the degree of misconduct and the facts of the case. (I had initially overlooked the Double Jeopardy reference.)

Posted by: David in NY on February 23, 2006 2:59 PM

David, by "bag o' tricks", I meant is this the sort of motion, like a motion for a directed verdict of Not Guilty after the state presents its case, that defense attorneys routinely make, or is it unusual in some respect?

Posted by: Charles Kuffner on February 23, 2006 3:16 PM

No, Charles, this is not pro forma. Attorney George Parnham really means business here, as well he should. That testimony was abominable, and if the prosecutor knew (or suspected) that Dietz was making stuff up, there ought to be a remedy for his wrongdoing. There is a real question, however, whether the defense already got all it was entitled to by getting a new trial. The answer to that may depend in part on how folks feel about Andrea these days, whether the Judge is elected, and when the election is. You would know more about those things than I.

Posted by: David in NY on February 23, 2006 4:01 PM

Kuff, I wouldn't put this motion in the 'usual bag of tricks' category. It is relatively unusual to claim Double Jeopardy after a mistrial, unless some prosecutor conduct warrants it. As David said, this is not exactly the same as intentionally aborting a trial, since the trial never mistrialed. But, it IS an interesting argument, and if successful, would certainly make those EXTREMELY few prosecutors who intentionally introduce false testimony think twice about doing so.

Posted by: RedScare on February 23, 2006 4:29 PM

And Charles, some of that stuff like the motion for a directed verdict or whatever isn't really a defense "trick" so much as a prosecution trick. Defense lawyers must make such a motion in every case, because if they don't, they waive a very important claim on appeal, that the evidence was insufficient to convict their client. That is, the draconian forfeiture rules (make the motion or lose it forever) designed to cut down on defense claims on appeal, forces defense lawyers to make lots of boilerplate motions just in case. Sorry if a little off topic, but it's important to understand that appellate courts generally won't listen to claims that weren't first made to the trial court.

Posted by: David in NY on February 23, 2006 4:38 PM

Thanks very much for the feedback, guys. That really clarifies things a lot.

Posted by: Charles Kuffner on February 23, 2006 4:46 PM