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We learned yesterday that Nueces County District Attorney Mark Skurka has decided to retry Hannah Overton for capital murder in the death of her four year-old foster son, despite the Texas Criminal Court of Appeals’ reversal of her conviction, and substantial evidence in the court’s concurring opinion of ethical violations and misconduct by the original prosecutor, Sandra Eastwood.

In 2007, Overton was sentenced to life without parole in the death of the boy, whom an autopsy showed had died of acute sodium poisoning. The prosecution’s theory of the case was that Overton had deliberately overdosed the child to punish him for poor behavior.  A jury poll, however, revealed that every juror had decided to convict on the basis of Overton’s alleged failure to seek medical treatment in a timely fashion, not an act of poisoning.  They nonetheless found her guilty of capital murder.

Overton has maintained her innocence throughout, and her case has been featured on 20/20, and has been the subject of an ongoing campaign to win her release.  For the most in-depth reporting on the case, you can read Pamela Colloff’s articles in the Texas Monthly here and here.

In last month’s reversal of her conviction, the 7-2 majority of the Criminal Court of Appeals relied on her ineffective assistance of counsel claim without reaching the question of misconduct by prosecutor Eastwood.

But a reading of the three judge concurrence reveals how serious that misconduct was, and makes DA Skurka’s decision to retry Overton appear as one more instance of a prosecutor’s office refusing to back down in the face of a collapsing case.  For starters, we learn, “At the Habeas hearing, the prosecutor conceded that, during the 2007 trial, she was an alcoholic who was also taking prescription diet pills that affected her memory,” and that “she was later fired by the District Attorney (who had been the second-chair prosecutor during this trial) for unrelated ethical violations.”

That second chair, Anna Jimenez, testified that Eastwood “told her she would do anything it would take to get an advantage over the defense, including sending a spy to the [defendant’s] church group to learn the defense strategy.”  Jimenez stated that Eastwood “was not ethical,” “was not truthful,” and “was violating the Court’s orders.”  Just to underline, this is the testimony of a fellow prosecutor second chairing the same trial (in fairness, if that’s the right word here, we should add that Jimenez, after later serving as Nueces County DA and firing Eastwood, was herself indicted for falsifying affidavits in a murder case).

The lack of truthfulness and ethics on Eastwood’s part apparently resulted in the failure to disclose two highly exculpatory pieces of evidence: (1) a test result on a sample of the child’s vomit that showed a normal, low sodium level, suggesting the high sodium in his blood resulted from ingestion many hours earlier, exactly as the defense contended; and (2) medical records of the boy’s physician establishing that he had a serious behavioral disorder, of which his foster mother had never been informed, and which could explain his bizarre eating habits.  In short, a failure to disclose a nearly complete defense to the crime.

This must be added to the majority’s holding that Overton’s defense was constitutionally ineffective in failing to put on the stand a sodium poisoning expert who would have testified that getting the boy to the hospital sooner would very likely not have saved his life.  An expert the defense will presumably call in any retrial.

Yet despite all this, DA Skurka has refused to pursue a lesser charge, let alone take account of the mounting evidence of Overton’s innocence.  In announcing his plan to once again bring the charge of capital murder, he said, “no jury, no trial judge and no appellate court has ever found that defendant Hannah Overton is not responsible for the death of Andrew Burd.”

Once again, a high profile conviction has been reversed on appeal, but rather than reevaluate in light of the evidence, a District Attorney is doubling down in the face of it.

Upon hearing the news that charges would not be dropped, Hannah Overton was described as “calm but confident.”  Her attorney, Cynthia Orr, had a bit more to say about Skurka’s decision: “I think it is clearly unprofessional.  The presumption of innocence is something prosecutors should hold dear because that is what the entire system of justice hinges on.”

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