Using the case of former Dallas County DA Watkins Dallas criminal lawyer John Helms reveals why you should be wary of a selective/vindictive prosecution defense

In one of the more unusual cases in Dallas County in recent memory, former Judge Lena Levario dismissed the mortgage fraud indictments against a wealthy heir named Al Hill III because former Dallas County District Attorney Craig Watkins refused to testify in a hearing about whether he and his office had selectively or vindictively prosecuted Mr. Hill in order to benefit a lawyer and benefactor of Mr. Watkins, reports John Helms Dallas criminal lawyer.  The lawyer potentially stood to collect millions of dollars in attorney’s fees in a civil case against Mr. Hill, and Mr. Hill’s lawyers claimed that the lawyer improperly influenced DA Watkins to prosecute Mr. Hill in order to get leverage in the civil case.

Over the State’s objection, Judge Levario held an evidentiary hearing about the alleged selective and vindictive prosecution claims.  An evidentiary hearing is one in which each side can call witnesses and take their testimony about the issue.  DA Watkins was subpoenaed to testify, but he refused, claiming that he was not legally required to testify about a matter of his office prosecuting someone.  The lawyer who was alleged to have improperly influenced the prosecution also refused to testify.  She took “the Fifth,” meaning she invoked her constitutional right against self-incrimination.

Judge Levario found that there was enough evidence of possible improper influence that Mr. Hill was entitled to an evidentiary hearing.  She further ruled that Mr. Hill was denied a fair hearing because the only people who could testify about the lawyer’s influence, if any, on DA Watkins were the lawyer and DA Watkins.  But they both refused to testify.  She therefore dismissed the indictments.

On appeal, the Dallas Court of Appeals ruled that Mr. Hill had not presented enough evidence of selective or vindictive prosecution to be entitled to a hearing on the issue.  Therefore, the court held that Judge Levario abused her discretion by holding a hearing at all, and it reinstated the indictments.

The case was then appealed to the highest criminal appeals court in Texas:  The Texas Court of Criminal Appeals.  This week, the Court of Criminal Appeals unanimously reversed the Dallas Court of Appeals.  The media reported it as a great victory against the District Attorney’s office.

But what does it mean for criminal defendants around Texas?  Does it mean that they can get a hearing on selective or vindictive prosecution claims and force the District Attorney to testify under oath about his or her motivations for the prosecution?  The answer to that is, “In all likelihood, no.”

First of all, the Court of Criminal Appeals held only that Judge Levario acted within her discretion in holding a hearing at all.  On this score, the Court held that Mr. Hill had enough evidence to support his claim that it was not beyond the bounds of reason to hold a hearing.  The Court did not say one way or another whether it was proper to require prosecutors or the District Attorney to testify at such a hearing.  Nor did the Court approve or disapprove of the dismissal of the indictments when the District Attorney and the lawyer refused to testify.  It sent the case back to the Dallas Court of appeals and left those issues for that court to decide, reported criminal defense attorney Helms.

Second, under the law, it is very rare for a criminal defendant to have enough evidence to convince a judge to allow the defendant to get testimony from prosecutors on selective or vindictive prosecution.

Many people do not understand how difficult it is to prove selective or vindictive prosecution.  These require a lot more than just a prosecutor being angry or acting like he or she is “out to get” you.

Selective prosecution means that at least one other identifiable similarly situated person was not prosecuted and that the basis for the prosecution is because of the defendant’s race, religion, gender, or other arbitrary classification.  So, if the prosecution is based on the prosecutor’s belief that the defendant may really be guilty, then selective prosecution does not apply, even if other similarly situated people were not prosecuted.  In other words, the mere fact that other guilty people may not have been prosecuted does not mean that no one else can be prosecuted.

Vindictive prosecution requires a showing that the ONLY reason for a prosecution is because the prosecutor was acting for a type of improper purpose, such as retaliating against a person for exercising their constitutional rights.  So, if part of the reason for the prosecution is a belief in the defendant’s guilt, there is no vindictive prosecution.

Claims of selective or vindictive prosecution are rarely successful.  When they are, it is because of really unusual facts.  If you are accused of a crime, be wary of any criminal defense attorney who might try to get your hopes up about these claims, especially an unscrupulous lawyer who is trying to get you to hire him or her.  Unless your circumstances are extraordinary, it is probably best to focus on a defense strategy with a better chance of success.

If you, a family member or someone you know has been charged with a crime or have been convicted and need help with an appeal in the Dallas area, contact Dallas criminal lawyer John Helms at (214) 666-8010 or fill out the online contact form. You can discuss your case, how the law may apply and your best legal options to protect your rights and freedom.

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