Prosecutorial Misconduct goes unresolved in North Carolina, part 4

…continued from 2012 Complaint to the North Carolina Bar showing why Daniel Palacios should be exonerated….

There was no way for the jury panel to remain impartial because he led the witnesses to reiterate language that would call to the prejudices and fear of the jury. The repetitive sexually explicit language such as is evidenced here and again repeated with Detective Short, as well as Haley and Christal’s testimony dominated the trial time, but produced very little in the way of new material.  Instead, the testimonies’ sexually explicit language is reminiscent of the issue in United States v. Carpenter, 405 F.Supp.2d 85, 102 (D.Mass.2005). “The government’s repeated use of gambling metaphors during its closing arguments “may [ ] have induced a verdict based on the jury’s moral disapproval of the ‘gambling’ ” rather than on the jury’s conclusion that Carpenter had committed mail and wire fraud.  This led to the case ruling being overturned.   Note the testimony Ms. Edwards presents, starting with “…she stated…”; here the testimony creates a discrepancy between what Veronica says on the stand in her own testimony.

This statement is a big difference from Veronica’s testimony that was reiterated several times throughout the trial and planted as fact, the repetition that the sexual act occurred one month after Valentine’s Day. There are several instances of investigative reporting where Veronica’s testimony changed from report to report, and as a minister of justice, Mr. Hubbard should have been in better pursuit of the interest of justice. This will be referred to again in another section. Further misconduct is evidenced on p. 391 of the transcript. The Court had not given this instruction to Ms. Edwards before, but on line 12, she uses the sexually explicit language, “he also made her use her mouth on him”. Judge Albright gets loud and firmly instructs Ms. Edwards to “look at the jury”. This gives Hubbard an unspoken permission to drive the language even further into the jury’s mind, because now the witness is looking at the jury, and Mr. Hubbard repeats the same language. He then goes on to attempt to excuse his behavior by stating on p. 393, Lines 1-6: Fair to say that you don’t really recall much about your interview with her; is that – is that true? That’s true. It’s been – You do a lot of interviews? He leads the witness all the way to the end of her testimony.

This same type of testimony continues with Detective Short. Here Hubbard is establishing his pattern of misconduct, with having Detective Short disclose information that had not been admitted as evidence. On p. 404, Mr. Hubbard begins asking questions about the original interview he had with Veronica. Det. Short states, “just in reviewing my notes, I didn’t make any specific outstanding remarks…” (Document 17, lines 13,14) The transcript of this interview was not introduced as evidence, so Hubbard commits his earlier interference with due process.

2. By secretly threatening my wife so that she would not be able to testify was definitely an example of concealment of material facts. His covert threat also showed an activity designed to frustrate or evade an existing investigation, which leads to criminal activity, as evidenced in Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S. If Mr. Hubbard felt that my wife’s one comment recorded one a jail phone in response to an erroneous newspaper article warranted charges to be brought against her, why did he only threaten to prosecute “if she testifies(on my behalf)”? As she has already sent you a copy of any legal documentation in regards to the actual newspaper article, I did not copy it. We  do not currently have access to the phone transcripts, but there was only one statement referring to my wife’s being in a state of meltdown due to her diagnosis of Asperger’s. She can’t always control impending mental outbursts. She was referring to an incorrect news article whose errors were never corrected. We didn’t have any clue what was being alluded to when it listed my charges involving two minors. She had no idea what the charges were against me. There was just one simple word typed in on the transcripts (mistake) when we received them almost a year after she made the comment. The Sherriff’s Department had mixed me up with another man named Palacios.   (My wife included this evidence when she mailed her grievance)

There could no other reason to keep my wife from testifying other than the element of truth that would show to the jury my innocence, as she had a great deal of information regarding the various therapies we placed the children in from 2002-2008, some that were even in the home at the time of the allegations. This would also purposely exclude her testimony regarding her work history as well as the admittance of her work record if she didn’t testify.  Mr. Hubbard’s threat to press charges against her over a simple statement made in anger shows Mr. Hubbard’s dishonesty, breach of trust, or serious interference with the administration of justice.

Hubbard conceals pertinent exculpatory evidence in his direct with Detective Short. See p. 440 of transcript. Document 19;Lines 3 – 18 : Okay. When you went to Mr. Palacios’ house did you check to see if there was a lock on Veronica’s bedroom door? I don’t believe I did. I did not. This should be terribly important. This was a criminal investigation. He never checked to see the validity of Veronica and Nicholas’ allegations. Neither he nor Ms. Edwards nor the other investigator who was training Det. Short took pictures or checked on the truthfulness of the testimonies. Yet, when I asked Sabrina Bailey, the Defense, about bringing the door in as evidence because the door knob was the original skeleton type from 1905 and due to age, the door didn’t even fit against the knob and wouldn’t even close, and didn’t have a way to lock, she stated we didn’t have burden of proof. Looking at Nicholas’ testimony, we see that he states the door was locked, two different times, yet he is not able to describe the lock.(See Document 18) What he describes is a separate locking device, which was not the case at all, because it was a one – piece skeleton key attachment that the door knob went through. However, as seen above, the detective didn’t even check the validity of their statements. Why doesn’t Mr. Hubbard pursue this further, which is his job as a minister of justice? He is determined to find some incriminating evidence so pushes about the testimony Nicholas gave in regards to looking under her door. Lines 16-18:  Did you check to see or did you look underneath the door to see how far you could see in that room? I did not. As Det. Short’s truthfulness was hurting his line of prosecution, he drops any further questions that could prove exculpatory and moves on to other information.

VII.  Prosecutorial Misconduct in Closing Arguments      C. Asserting Personal Opinion or Expertise    1. Expressing Personal Opinion about the Defendant’s Guilt 2. Inflaming the Passion and Prejudices of the Jury 3. Infringement on Specific Constitutional Rights

Mr. Hubbard’s entire closing argument was fraught with prosecutorial misconduct from start to finish. Mr. Hubbard’s closing argument starts on p. 549. On line 18 he starts his prosecutorial misconduct with name calling. And we can’t climb inside the head of a sex offender and determine what makes him act out in the way that this man did. This was beyond the bounds of his duty as an advocate. Most certainly, I, the accused “suffered substantial prejudice as a result of the comment.”  Mr. Hubbard already spoke of me as if I were a convicted felon, when the jury had not even gone into deliberations yet. (See also, Doe v. United States, 583 A.2d 670, 676 (DC, 1990)(Improper for prosecutor to refer to defendant as a “bad person”.) Judge Albright made plain error and permitted a clear miscarriage of justice by allowing Hubbard to say these things, as well (See Allen v. United States, 649 A.2d 548, 555 (D.C.1994)).   In determining whether there was plain error, we consider “whether the judge compromised the fundamental fairness of the trial, and permitted a clear miscarriage of justice, by not intervening, sua sponte, when the prosecutor made [the challenged] remarks․”  McGriff v. United States, 705 A.2d 282, 288 (D.C.1997) (quoting Hunter v. United States, 606 A.2d 139, 145 (D.C.), cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992)), cert. denied, 523 U.S. 1086, 118 S.Ct. 1542, 140 L.Ed.2d 690 (1998). Again, on pp.549,550 lines 25-1, Mr. Hubbard states, Use your common sense as you all said you would and could in this case. In lines 17-20, “He told her to do it. She didn’t want to. He directed her head down with his hands…and she complied. And obviously you saw… On p. 551, lines 11-12 “if this was right or not more confused and more afraid to come forward. And that certainly was the case here.” Lines 17-22, “But in this case it’s possible, as it was defendant doing this to Veronica, to train that child to do an act and to accept as normal a practice this is, in fact criminal. Because, remember, this started when she was ten years old in Pennsylvania. p. 552, 7-9, But, again, you know, this is what this child knew. This was her reality from the time she was ten years old. United States v. Young, 470 U.S. 1, 18-19 (1985) (The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgement rather than its own view of the evidence”). p.552,lines 21-23,

She just knows that her father…was doing this to her. And it continued. p. 553 lines 1-5, And he habitually sexually abused his daughter and she habitually was abused. And that’s what she had to grow used to during all of those years from when they moved…” p.553, line 9 “That was Veronica’s reality.” D.C. Bar R. 3.4 e (lawyers must not “[i]n trial…state a personal opinion as to…the credibility of a witness.”) p. 553, lines 17-22 He is the one using or abusing his authority over this child to create the situation of confusion and fear in her mind and to train her that this is a normal father/daughter relationship. That is what the defendant’s actions created for this child. p.554, lines 2-9 The defendant believed he had chosen his victim well and had reason to because he had victimized her since she was ten years old. He had done it in three different states. He had never, ever suffered any consequences for it. Veronica had suffered physically. She had obviously suffered emotionally for years, …He had trained her well. It’s certainly that kind of success for him…” McClellan v. United States, 716 A.2d 173,180 (D.C. 1998) (Improper for prosecutor to remark in closing that complainant was threatened by defendant when no evidence to support the argument had been presented.”) Bates vs. Bell, 2005 WL 659069 *8 (6th Cir. 2005) (Reversible error where, inter alia, prosecution, in penalty phase of capitol case, repeatedly asserted personal opinion regarding ultimate issues before the jury) ABA Standards for Criminal Justice, Standard 3-5.8 (b) (“The prosecutor should not express his or her personal belief or opinion as to …the guilt of the defendant.”) Powell v. United States, 455 A.2d 405, 409 n.2 (D.C. 1982) (“It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.”) lines 11-12, “he forgot at some point that his daughter Veronica is a real person and she was getting older…” p.555 lines 3-6, It is a burden that we regularly meet in these courtrooms and it is a burden that based on the evidence you have heard over the days of this trial we have more than adequately met in this case.

…continued….

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