In a rare move, a federal judge has thrown out a defendant’s conviction on drug charges after ruling that the prosecutor had interfered with his Sixth Amendment right to a fair trial.
In a blistering decision handed down Tuesday, U.S. District Judge Julie Robinson found that the prosecutor, Assistant U.S. Attorney Terra Morehead, had “substantially interfered with a defense witness’s decision to testify” in the case.
According to Robinson’s order, Morehead told the witness’s attorney that if the witness “got in her way, she would get in his way” in a separate case in which he was the defendant. That, said Robinson, went beyond the bounds of a straightforward perjury warning.
“While a limited warning of consequences for committing perjury is proper, a warning of consequences for simply taking the stand crosses the boundary line into improper witness interference,” Robinson ruled.
She added that Morehead “should have had a heightened awareness of the bounds of fair play and the gravity of witness interference” because she was accused of witness intimidation in another, highly publicized case.
The defendant in that case, Lamonte McIntyre, was exonerated in October after serving 23 years for two murders he did not commit. McIntyre’s attorneys had accused Morehead, who was a Wyandotte County prosecutor when she tried the case, of threatening to bring contempt charges against a witness and to have her children taken away if she refused to testify against McIntyre.
Jim Cross, a spokesman for the U.S. Attorney’s Office in Kansas, where Morehead has been a federal prosecutor for the last 15 years, declined to comment on Robinson’s decision.
The defendant in the case, Gregory Orozco, was charged with drug trafficking and firearm offenses. The issue of Morehead’s interference arose when Orozco proposed to call a witness to rebut the testimony of one of the government’s chief witnesses.
Orozco’s witness was himself awaiting trial on federal drug charges, and Robinson ruled that Morehead could ask him when he took the stand whether he was seeking favorable treatment in his case in return for testifying. But she also told Morehead that she couldn’t ask him about the underlying circumstances of his case because that would infringe on his Fifth Amendment right not to incriminate himself.
But the witness decided not to testify on Orozco’s behalf after Morehead relayed the warning to his attorney and also told her that she knew which prosecutor in Missouri was handling his indictment. Orozco then felt compelled to take the witness stand himself, which allowed Morehead to cross-examine him about his lengthy criminal record.
Had Orozco not felt compelled to testify, the jury wouldn’t have heard about the extent or nature of his prior convictions, Robinson wrote. “The Court thus concludes that AUSA Morehead’s prosecutorial misconduct, in violating Defendant’s Sixth Amendment right, prejudiced the Defendant.”
James Campbell, Orozco’s attorney, declined to comment other than to say that Robinson’s decision “speaks for itself.”
Dan Monnat, a Wichita attorney who has practiced law for 41 years, called Robinson's ruling "a brave and wise decision."
"Prosecutors wield tremendous power, but the Bill of Rights is a check on that power and the Bill of Rights prevents a prosecutor from denying an accused the witness needed for a fair trial by the prosecutor threatening and intimidating the defense witnesses," said Monnat, who was not involved in the Orozco case.
Monnat said he has seen judges dismiss cases because of prosecutorial misconduct, "but not this particular kind of prosecutorial misconduct."
He added: "Judges work with federal prosecutors every day and judges often work with the same federal prosecutors every day. It always has to be difficult for a judge to say to a prosecutor the judge regularly sees, 'You committed misconduct and this case is going to be dismissed forever because of that misconduct.' That's why I say it's a brave and wise decision."
Tom Bradshaw, a veteran criminal lawyer in Kansas City, said that most people don't understand how difficult it is to present a defense in a federal criminal prosecution.
Unlike in civil cases, in federal criminal cases attorneys can't depose witnesses to determine what they plan to testify about. And the government isn't required, prior to trial, to answer interrogatories, or questions, presented by the other side.
"So any interference with the defendant's presentation of evidence is extremely serious and, as Judge Robinson pointed out, can be harmful to the entire system of criminal justice," Bradshaw said.
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.
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