In a harshly-worded decision, a federal judge in Kansas overturned a drug trafficking conviction this week, finding misconduct by the same prosecutor who, 23 years earlier, prosecuted the wrongful conviction of Lamonte McIntyre for a double murder.
U.S. District Judge Julie Robinson found that Assistant U.S. Attorney Terra Morehead both withheld favorable evidence and threatened the attorney for a potential defense witness that her client would face perjury charges if he took the stand in the February trial of Gregory Orozco.
“The evidence demonstrates that AUSA Morehead acted in bad faith,” Robinson wrote in a memorandum and order filed Dec. 5, noting the government “has pointed to no basis in the record” that the witness was preparing to lie on the stand.
After the witness’ attorney relayed Morehead’s warning to her client, the witness, who was facing pending drug charges at the time, chose not to testify.
Judge Robinson not only overturned Orozco’s conviction on two counts of distributing drugs, but dismissed the indictment with prejudice – meaning Orozco cannot be retried in the case. She wrote that dismissal not only was necessary to correct the harm to Orozco, but also “to insure proper standards of conduct by the prosecution.”
The misconduct that Robinson found mirrors the misconduct allegations – withholding favorable evidence and threatening a witness –made against Morehead back when she was a state court prosecutor handling the case of McIntyre, a Kansas City, Kansas man. Wyandotte County District Attorney Mark Dupree said after two days of hearings in October on McIntyre’s motion for a new trial that a “manifest injustice” had occurred at the trial 23 years earlier.
It was a case that involved a variety of problems: Allegations of police corruption, prosecutorial misconduct, judicial misconduct, and inadequate representation of McIntyre both at the 1994 trial and on post-trial motions. When Dupree halted the hearing in October and conceded the wrongful conviction, he said then that the office was not conceding misconduct by Morehead in that case.
Dupree’s spokesman failed to return calls from Injustice Watch on Thursday.
In her ruling in the drug case, Robinson referred to Morehead’s conduct in the McIntyre case as she wrote that the prosecutor “should have had a heightened awareness of the bounds of fair play and the gravity of witness interference.” She concluded that Morehead “violated Defendant’s Sixth Amendment right to present a defense by substantially interfering” with a defense witness’ decision to testify.
The prosecutor’s “interference….was substantial and departed from proper standards of conduct by the prosecution,” the judge wrote.
Orozco originally was to go on trial in December 2016 on two charges of drug trafficking and two charges of gun possession. The charges developed after deputy marshals conducting surveillance observed what appeared to be a drug transaction involving a maroon pickup truck being driven by Orozco with two other occupants inside. The marshals found an unloaded firearm and drugs inside the truck.
Orozco was charged with conspiracy to distribute or possess more than 50 grams of methamphetamine over a period of months.
Minutes before the trial was to begin in last December, the prosecutor provided Orozco’s defense attorney with computer memory cards that were found in a container that also contained the methamphetamine. On the memory devices were more than 200 photographs that appeared associated with one of the other occupants in the car. The judge ruled that the prosecutor had improperly withheld exculpatory evidence, and the trial was delayed for two months.
When the trial resumed in February, Morehead presented evidence that Orozco was a trafficker. Prosecution witness Jose Alejandro Ruiz testified that after he met Orozco at a casino, he began regularly selling large quantities of methamphetine to Orozco.
The defense sought to call Ruiz’s brother, Jose Luis Ruiz-Salazar, to contradict his brother’s account of his relationship to Orozco. But during a break, prosecutor Morehead approached Ruiz-Salazar’s attorney, threatening the perjury charge. Ruiz-Salazar, whom Orozco contended could help prove his innocence, then decided not to testify.
The jury convicted Orozco on the drug charges but acquitted him of the gun charges; after the verdict, Orozco’s attorney raised anew Morehead’s comments that kept Ruiz-Salazar from testifying.
The reluctant witness testified at a September hearing that Morehead had told his attorney “if he got in the prosecutor’s way, she would get in his way on his case.” His attorney testified that she did not recall the language Morehead used, but confirmed Morehead told her there was a “strong possible outcome” that there would be ramifications if her client testified.
Ruiz-Salazar’s attorney, Tracy Spradlin, said she considered the tone “assertive” but not necessarily “confrontational.”
The judge wrote, “A prosecutor’s warning that she will personally interfere in a witness’s pending case in another federal jurisdiction also crosses the bounds of fair play.”
Judge Robinson, in her decision in the Orozco case, noted the accusations against Morehead in McIntyre’s case, writing, “This prosecutor should have had a heightened awareness of the bounds of fair play and the gravity of witness interference.”
In McIntyre’s case, an eyewitness to the double murder stated that she realized, when she went into the courtroom, that McIntyre was not the man she had seen fire a shotgun into a parked car, killing both occupants. The witness, Niko Quinn, later contended that she told Morehead that McIntyre was innocent, and Morehead threatened to take Quinn’s children away if she did not implicate McIntyre.
At the post-conviction hearing in McIntyre’s case, an aunt of one of the victims said that Quinn told her, after stepping down from the stand, that she had been forced to falsely testify. The aunt, Gloria Labat, testified that she went and reported Quinn’s statement both to McIntyre’s attorney and to Morehead, but neither took any action.
Morehead also was accused of withholding from the defense a variety of exculpatory evidence, including the recantation. An ethics expert also testified during the hearing that Morehead and the trial judge committed misconduct by not disclosing to the defense a prior romantic relationshiop that they had.
After McIntyre was freed, Kansas City public radio station KCUR reported a series of other cases in which Morehead was accused of questionable conduct.
Morehead has declined to comment.