Wednesday, September 26, 2012

Hughes News: Motion to Replace

Last Tuesday, Preston Hughes mailed a motion to federal court requesting that his current attorney, Patrick McCann, be replaced. Preston filed the motion pro se, meaning he did so on his own, without an attorney.

On Friday, the court filed the motion, officially making it part of Preston's legal case. The basis for motion is that McCann has failed to submit any appeal based on Preston's actual innocence. The motion is available at my new SkepticalJurorDocs site. The first page is included below. Click on that page to see the entire document.

On Monday, 24 September, the court ordered Patrick McCann to file a brief responding to Preston's motion that McCann be replaced. The court ordered McCann to respond by 5 October. The court gave him the option of filing his reply under seal. I presume that option is generally made available to allow the attorney to respond without violating attorney-client privilege.

The order to respond is short, less than a page. I've included an image below. Click on the image for a pdf copy of the document.

In considering Preston's motion, Judge Hoyt is required by the Supreme Court, as of March 2012, to base his decision on an "interests of justice" standard. The Supreme Court set that standard in Martel v. Clair. The opinion was delivered by Justice Kagan.

It's difficult for me to understand how it is not in the "interests of justice" to have a substantial claim of actual innocence be heard by a court heard at least once prior to executing a person for a crime he may not have committed.

The standard vehicle for such an appeal based on actual innocence is a petition for habeas corpus. From Wikipedia:
Habeas corpus ["you must present the person in court"] is a writ (legal action) which requires a person under arrest to be brought before a judge or into court. This ensures that a prisoner can be released from unlawful detention, in other words, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner's aid. The legal right to apply for a habeas corpus is also called by the same name. This right originated in the English legal system, and is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action.
Since the Constitution grants the people (in their role as jurors) the right and obligation to determine guilt or innocence, courts can overturn jury verdicts only under limited and specific conditions. One of those conditions is that new evidence has been discovered since the trial that if known during the trial would have resulted in a new trial. While there is considerable dispute over what constitutes new evidence, and over the standard of determining how a jury might have responded to the "new" evidence, no one disputes the fundamental principle.

We'll be discussing such issues before long, particularly since we do not have long before Preston Hughes is scheduled to die. Patrick McCann has until 5 October to explain himself to the court. On 5 October, Preston Hughes will have but 41 days to live.


Dr. Thinus Coetzee said...

Way to go!!! Respect to you SJ!!!

Anonymous said...

I find it difficult to believe that the ME wasn't examined as to whether Shandra Charles would have been able to speak or not. However, you have repeatedly refused to post the transcripts.

Unknown said...

The trial transcript, autopsy reports, police reports, crime scene photos and more are posted at

Anonymous said...

Is that the correct link? I get page not found.


Anonymous said...

I think she means this:

However, I see no trial transcripts posted.

Anonymous said...

This appears to work:

Anonymous said...

If Preston Hughes is successful in his motion to replace Patrick McCann, I hope he gets a decent defence barrister (UK term for 'attorney') who will actually investigate the correct things in his case.

Let us hope Mr. Hughes will win out after all.

Anonymous said...

TSJ, just been researching "new" evidence in this context. I am pretty sure that the evidence you have uncovered which shows that the depth of the knife was inconsistent with the victims' wounds, and the pathologist enquiries showing that the victim would not have been able to identify her killer would qualify as "new" evidence. Does the defence also have to prove that even in the exercise of due diligence, they would not have uncovered the evidence at trial though?

Anonymous said...

No that would not be new evidence since it's the responsibility of the defense to find an expert to explain why the knife couldn't have been used or that the victim could not tell the name. Pictures of the crime scene that the state witheld owuld be new evidence.

So I got through the trial testimony. Preston admits to stabbing someone in the same field as the Shandra and marcell. Washing the knife off and putting it in his bedroom but supposedly it wasn't the same knife. However the cops weren't smart enough to find two knives in the apartment, one which would have had blood on it according to Preston.


tsj said...

Mike is simply incorrect in his assertions above, as he has frequently proven to be. If the HPD or any other authority filed materially false police reports, testified to materially false information, or manufactured evidence, then that is always "new" evidence.

Anonymous said...

I play devil's advocate on here, since it livens it up....But please provide the links to the legal views of what would constitute "material" changes.

Here's a link I found what would constitute a new trial.

So the question that would be argued would be whether or not the officer hearing a name with her condition would be one that should have been dealt with at the trial.


Anonymous said...

I agree. If any evidence can be adduced to support the claim that evidence has been withheld from the defence or falsified then that surely would satisfy the "due diligence" part of the requirement. Also, so would ineffective defence of counsel if this could similarly be proven. Perhaps he could also consider a petition to the Courts under a Section 1983 suit (Civil Rights Act 1871) and SB 122 for testing of DNA evidence relating to items discovered at the scene of the crime that were NOT tested (although not sure if this pertains to the most key evidence - ie. the ones used to primarily convict. I'm just trying to suggest some ideas here but if Preston's motion to replace fails and his attorneys go on refusing petitions on claims of innocence, are there any other avenues? Would it be worth compiling a report detailing all the evidence citing all potentially pertinent legal arguments in support of Preston's innocence to the Supreme Court in an effort to have them stay the execution and investigate grounds for an evidentiary hearing? I know these questions are purely academic at this point in time as we should surely await the outcome of the motion on 5th October first. I sincerely hope for a favourable outcome on 5th October for Preston.

Anonymous said...

Mike - Unfortunately I do not have a link to what constitutes new evidence. I am a UK resident and although I have access to my University's legal resources, it does not allow me access to legal materials from other common law jurisdictions. I have conducted my research from looking at some other Texan cases filed on claims actual innocence. Apparently, the benchmark for this ruling in Texas anyway was, Ex parte Elizondo (1996). Some Federal cases such as United States v Harris (2005) have succeeded in submitting mental health conditions as new evidence - although here also, you could contend that this could reasonably have discovered at trial by the defence with "due diligence" so the scope of "new evidence" may surely not be as restrictive as first thought - but then again, this is Texas we're talking about.

Anonymous said...

Prior to trial, his atty would have hired an expert forensic pathologist to review the evidence. If one did not testify on his behalf, then it means that his findings were not favorable to the defense. Post conviction, Hughes was given permission and funding to test various items. The outcome of the testing is not known which again suggests the results were not favorable to the defense.

Anonymous said...

Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." 108*108 Under that statute, a defendant is entitled to have his motion for new trial granted if (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim.App.2002).

A defendant is entitled to a hearing on his motion for new trial if the motion and accompanying affidavit(s) "rais[e] matters not determinable from the record, upon which the accused could be entitled to relief." Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993). To be sufficient to entitle the defendant to a hearing, the motion for new trial and accompanying affidavit(s) "need not establish a prima facie case" for a new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim.App.1994). Rather, they "must merely reflect that reasonable grounds exist for holding that such relief could be granted." Martinez v. State, 74 S.W.3d 19, 22 (Tex.Crim.App.2002). The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion. Id. at 21. If the trial court denies a hearing on the motion for new trial and the defendant appeals from that denial, the appellate court must review the trial court's decision for abuse of discretion. Id. at 22.

(Wallace v. State,106 SW 3d 103, 107-108 Tex. Crim. App.2003).

Anonymous said...

Martel deals with the standard of review the court must apply when entertaining a motion for a substitution of attys. If you had read the decision, you would see that the USSC ultimately held:

"[T]he  court  also acted  within  its  discretion  in  denying  Clair’s  request  to substitute  counsel,  even  without  the  usually  appropriate inquiry.  The  court  was  not  required  to  appoint  a  new lawyer just so Clair could file a futile motion. We accordingly  find  that  the Court  of Appeals  erred  in  overturning the District Court’s decision."

tsj said...

That's correct. The court held that motions for substitute counsel must be decided based on "the interests of justice." That is a much less rigid standard than the State argued for in Martel. That "interests of justice" standard is now the law of the land.

In Martel, the court did then find that, even when weighed against the "interests of justice" standard, Clair failed to present a valid claim for new counsel.

In his pro se motion, Hughes did not argue that the court must automatically assign replacement counsel. He argued instead that it would not in the interests of justice to execute someone who has a substantive case of innocence, yet has a attorney unwilling and/or unable to make that case before the courts.

I agree with Hughes.

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