Prosecutors 'double down' on evidence tampering, now can 'go for broke' knowing judges could bail them out

Recently I'd noticed a remarkable December dissent (pdf) by Justice Patrick Pirtle of the Amarillo 7th Court of Appeals which opined:

I am bothered by the frequency with which prosecutors of this State have turned to section 37.09 of the Texas Penal Code to “double-down” on defendants by seeking a second conviction for “tampering with evidence” when an accused merely acts to dispossess himself or herself of evidence of another crime. I do not believe the Legislature intended section 37.09 to be used in that fashion, and until the Court of Criminal Appeals speaks to the matter, I will continue to view such prosecutions in a circumspect manner.

"I do not believe that section 37.09 criminalizes merely dropping an object or distancing yourself from it," wrote Justice Pirtle, though in that case his two fellow judges on the panel disagreed.

Then on yesterday's Texas Court of Criminal Appeals hand down list, reported the Lubbock Avalanche Journal ("2008 evidence tampering case sent back to Amarillo Appeals Court," Jan. 10), the issue resurfaced. The paper described the latest case thusly:

A Lubbock County jury convicted [Gregory] Thornton of tampering with evidence in a 2008 trial before District Judge Jim Bob Darnell and sentenced him to 45 years in prison. In August 2012, however, the Amarillo-based appeals court overturned that conviction on grounds that the evidence didn’t support the verdict and acquitted Thornton.

Thornton and a woman with whom he was walking were arrested in April 2008 by Lubbock police for possession of drug paraphernalia, a misdemeanor.

A Lubbock County grand jury indicted Thornton on one count of tampering because one of the arresting officers saw him take something out of his pocket and drop it. The dropped materials turned out to be a broken crack pipe and a “Brillo pad.”

“Brillo pad” is a slang term among crack users for a piece of copper scrubbing pad used as a filter under the burning piece of crack in the pipe bowl.

The appellate court noted the arresting officer testified at trial he saw Thornton drop the pipe and saw where it landed. As a result, the Amarillo court ruled Thornton “merely dispossessed himself of the evidence,” but was not guilty of tampering with evidence because he made no attempt to hide it from the officers.

“Appellant never affirmatively acted to make the crack pipe unavailable in a subsequent investigation,” Justice Patrick A. Pirtle wrote for the Amarillo court.

When I'd first read Justice Pirtle's concerns, it never occurred to me prosecutors might use that charging trick to turning a misdemeanor paraphernalia charge into a felony with a 45 year sentence! Wow!

The Court of Criminal Appeals did not dispute Justice Pirtle's analysis that Mr. Thornton did not tamper with evidence, but said they "should have considered whether the evidence was sufficient to support a conviction for the lesser-included offense of attempted tampering with evidence," even though prosecutors did not allege that crime at trial. (See the brief ruling.) Ordering the Amarillo court to evaluate whether Mr. Thornton might be guilty of other, lesser charges the prosecution never sought is itself a shift in the CCA's jurisprudence. Again, from the Avalanche Journal:

The high court, noting that it was considering what turned out to be a landmark decision in criminal cases at the same time, directed the Seventh Court of Appeals to determine if evidence in the trial record could support convicting Gregory Thornton of attempted tampering with evidence.

The decision appears to be one of the first times the Court of Criminal Appeals has applied a decision released in September that allows appellate courts to change a verdict to address a lesser offense even if the lesser offense was not pleaded or included in jury instructions.

That decision reversed a 1999 decision by the Court of Criminal Appeals that said an appellate court could only reform a verdict to a lesser-included offense if the evidence didn’t support a guilty verdict in the greater offense but did fit the reduced charge, and if the lesser offense had been requested by either side in the case or included in jury instructions by the trial judge.

Here's the new case, Bowen v. State, which revised the court's precedents to allow appellate courts to change verdicts to crimes never charged by the prosecution. The purpose of the old precedent, said the court in Bowen, which "was to prevent the State from overreaching and having an unfair advantage over the defendant, has been lost through our subsequent decisions." That prior ruling was "based on the rationale that allowing the reformation of judgments would encourage the State to use a 'go for broke' trial strategy of not requesting a lesser-included offense instruction in order to make it more likely to obtain a conviction for the charged offense." Now, apparently, such "go for broke" tactics are fair game.

In Bowen, the state was engaging in exactly this sort of overreach, seeking first degree felony charges by alleging the amount stolen from a family trust was above $200,000 when, in fact, the "value of the property misapplied was approximately $103,344," which would only justify second degree felony charges. Even so, said the CCA, "the judgment must be reformed to reflect a second-degree felony conviction" instead of acquittal.

I wonder how frequently it happens that misdemeanor charges are bumped up to a decades-long felony sentence based on the sort of prosecutorial ploy used in Thornton? Grits shares Justice Pirtle's frustration at such a sweeping use of the evidence tampering statute, and wonder what consequences might arise from allowing appellate judges to affirm convictions for charges never brought by the prosecution.