CAUSE NO. 2015-2222-C1
THE STATE OF TEXAS§IN THE 19th DISTRICT
§
V.§COURT OF
§
CODY LEDBETTER§MCLENNAN COUNTY, TEXAS
Defendant’s Renewed
Motion to Recall Discovery
And
to DISQUALIFY McLennan County District Attorney’s Office
Comes now, Cody Ledbetter, by and through the undersigned counsel, and presents this RenewedMotion to Recall Discovery and to Disqualify the McLennan County District Attorney’s Office. As will be shown below, illegal and outrageous government conduct in this case must be remedied by recalling discovery, deleting electronic files, and removing the McLennan County District Attorney’s Office from further litigation in this matter under the Due Process and Due Course of Law protections of the United States and Texas Constitutions, respectively:
- Violations of Texas Penal Code Sec. 21.16 by McLennan County District Attorney’s Office
Mr. Ledbetter had pictures and/or videos of himself and his wife engaging in consensual sexual activity stored on his cellular telephone. These images were consensually taken by the couple, and were not meant for anyone but the two of them to view. Following his arrest, his telephone was searched and these images copied and inspected by law enforcement, even though they were outside the scope of any warrant or other authorization as there was no reason to believe such images had a scintilla of evidentiary value. Following this inspection, instead of deeming the images irrelevant to any litigation and deleting them, the images were copied over one hundred and fifty (150) times, and distributed to counsel and staff for all of the “Twin Peaks Defendants” as part of discovery.
There is no rational or credible argument that these images have any relevance at all on this (or any other) criminal case. These private and intimate images, intended to be seen only by the Defendant and his wife, have been made available to hundreds if not thousands of people (when other defendants, their attorneys, and the staff of those attorneys’ law firms and/or investigators, are included.)[1] This constitutes a gross violation of Sec. 21.16(b) of the Texas Penal Code:
Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosureof the visual material.
The images distributed serve no legitimate law enforcement or litigation purposes, and can only have been distributed to cause embarrassment and harm to Mr. Ledbetter and his wife. No legitimate purpose could have been served or intended by the dissemination of these images.It cannot be maintained that the State did not know what they were distributing; the State took extensive time to examine the contents of Mr. Ledbetter’s telephone before so widely distributing these images. Distributing over one hundred and fifty copies of these intimate images, knowing each copy could and likely would be seen by a number of people, without any legitimate belief that they were somehow legitimately case-related, appears to be not merely an intentional and particularly invasive tort, but an indefensible violation of criminal law as well. Each image released constitutes a separate Class A Misdemeanor – and each set of discovery contained numerous images, constituting, in all, well over a thousand distinct and chargeable criminal offenses. Such gratuitously and egregiously harmful conduct, aimed at both the accused and his completely innocent wife, cannot be excused with a simple wink and a nod.
It is beyond cavil thatthe conduct by the McLennan County District Attorney’s Office, gratuitously, tortuously and criminally invading the privacy of both Mr. Ledbetter and his wife, is outrageous. In fact, one can readily conclude that committing hundreds of criminal offenses gratuitously or vindictively during a prosecution is as rare and egregious an example of governmental misconduct as may be found. The unlawful and intentional or knowing disclosure of intimate visual images belonging to the Defendant and his spouse, under the guise of disclosure, is so outrageous that it violates the due process clause by denying fundamental fairness and is shocking to any universal sense of justice. See, e.g., Reese v. State, 877S.W.2d 328, 333 (Tex.Crim.App. 1994).
- THE MICHAEL MORTON ACT
It has previously been asserted by the State, and accepted by this Honorable Court, that the State was in some way “obliged” to disseminate these images under the Michael Morton Act, Texas Code Crim.Proc. Art. 39.14. There is no merit to this assertion. In fact, the law is so clearly opposed to this position that it is difficult to believe any attorney asserted it in good faith.
The Michael Morton act specifically provides for situations in which material that is not germane to any legal manner is accumulated by the State. The Act clearly provides that it only covers items “not otherwise privileged that constitute or contain evidence material to any matter involved in the action…” Art. 39.14(a). The State is not required to permit the inspection, or to produce, material that does not “constitute or contain evidence material to any matter involved in the action,” and the steps for the State to take when irrelevant material is obtained are clearly spelled out. There is no justification for making public intimate images, in violation of Texas Penal Code 21.16, merely in order to avoid following the requirements of the Morton Act, as spelled out below:
“(c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.”
It cannot be claimed with a straight face that these intimate images “constitute or contain evidence material to any matter involved in the action.” They are not discoverable under the Michael Morton Act, Tex.CodeCrim.Proc. Art. 39.14. The State was under no duty to turn these images over, and, under Texas Penal Code 21.16, was forbidden to do so. Considering themselves above the law, they persisted in doing so. Yet not even District Attorneys or their assistants are entitled to break the law in Texas. These crimes against Mr. Ledbetter and his wife are real and serious, and this Honorable Court cannot let them pass with a wink and a nod.
- Recalling Discovery
The first step that must be performed is that all discovery released in this case must be recalled. The recipients must be ordered to also return any electronic or physical copies of discovery produced. The McLennan County District Attorney must then be ordered to purge the discovery of all intimate visual material unrelated to the litigation at hand, including any that they may have retained. Whatever other relief is sought or granted, that purging of the intimate images must occur immediately.
- Removing the District Attorney’s Office
This presents an unusual issue, in that it is thankfully extremely rare (if not unprecedented) for a prosecutor to be in a position to prosecute the victims of their own criminal acts. In fact, even cases dismissed for outrageous government conduct rarely involve actual crimes committed by the State against the accused. However, herein we have a clear case of multiple crimes committed by the State against not just Mr. Ledbetter but also his wife. This is truly beyond the pale, and is a clear violation of due process and due course of law under the United States and Texas Constitutions.
The Court of Criminal Appeals has held that “Counsel may be disqualified under the disciplinary rules when the opposing party can demonstrate actual prejudice resulting from opposing counsel's service in the dual role of advocate-witness.” Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003). The Gonzales Court further noted that “[i]n determining whether counsel should be disqualified because counsel is a potential witness, Texas courts use rule 3.08 of the Texas disciplinary rules of professional conduct as a guideline.” Id.
A District Attorney may be disqualified if his continuing to serve on a particular case would constitute a due-process violation. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994). Due process violations are shown when the District Attorney’s participation in the case would constitute actual prejudice. In re State ex rel. Young, 236 S.W.3d 207, 212 n.23 (Tex. Crim. App. 2007). See House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997) ("[I]f a defendant cannot show actual prejudice from an alleged disciplinary rule violation by the State, then he will not be entitled to relief . . . .") Clearly, in this case, prejudice is plain: Mr. Reyna, and numerous other prosecutors in his office, have victimized Mr. Ledbetter and his wife. They have shown no respect for his rights, and cannot justly prosecute their own victim.
Due Process has been simplistically defined as “that process which is due.” The words “due process” suggest a concern with procedure, and that is how the Due Process Clause is usually understood. However, the clause has been taken as a kind of proxy for other, unenumerated rights, such as equal protection of the law and the right to contract. See, e.g., Lochnerv. NewYork, 198 U.S. 405 (1905). The question we are confronted with herein is whether due process and due course of law are offended by allowing a prosecutor to prosecute an individual when there exists probable cause that he himself has victimized that individual – hundreds of times, in fact. The Due Course of Law provision of Article I, Sec. 19 of the Texas Constitution echo the wording of the Due Process Clauses of the Fifth and Fourteenth Amendment, and achieve the same ends. As to procedural due process relationships between the Fourteenth Amendment and Article I, § 19, see CityofShermanv. Henry, 928 S.W.2d 464, 472-73 & n.5 (Tex. 1996) (citing Univ. of Tex. Med.Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)), and Mellingerv. CityofHouston, 3 S.W. 249, 252-53 (Tex. 1887).
While the text of the due process clause is extremely general, the fact that it appears twice (the Fourteenth and Fifth Amendments) makes it clear that Due Process is a central Constitutional proposition. It echoes this country's Seventeenth Century struggles for political and legal regularity, and the American colonies' strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all mature legal systems, and the Due Process Clause is often thought to embody that commitment. The Texas Due Course of Law provision serves the same purposes, and carries the same weight.
There can be no argument as to whether the State violated the Defendant’s rights by disseminating these images. The Texas Penal Code answers that question resoundingly by making the distribution of such images, without consent, a criminal act. And there can be no question that the State’s wrongful actions deprived the Defendant of procedural due process, violating his rights in this matter without any procedures in place to protect them whatsoever.
In determining what types of procedures the due process clauses guarantee, an analysis made by the late Judge Henry Friendly in his well-regarded article, "Some Kind ofHearing," generated a list that remains highly influential, as to both content and relative priority:
An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.
See Judge H. Friendly, Some Kind of Hearing, 123 U.PennL.Rev. 1267 (1975). Again, these are simply the kinds of procedures that might be claimed in a "due process" argument, roughly in order of their perceived importance, and not a list of procedures that will in fact be required in every case. The dramatic point, however, is their relevance to Mr. Ledbetter’s prosecution. He and his wife were provided no process, whatsoever, before his intimate private images were distributed by the State. It was intentional, knowing, and vicious, and was clearly and plainly calculated to harm an innocent man and his innocent wife.
The due process clausehas also been used to protect certain “substantive due process” rights.Substantive due processis a principle allowing courts to protect certain rights deemed fundamental from government interference, even where procedural protections are present or where those rights are not specifically mentioned in the constitution.[2] Courts have identified the basis for such protection from the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law."The question in these cases is whether “due process of law” might be violated by certain actions taken by legislators, judges, or other officials.[3] It is asserted, herein, that by releasing these intimate visual images straight from the marital bedroom without any legal justification for doing so, the State violated a constitutionally based and fundamental right to privacy, grounded in the Ninth Amendment and in both Common and statutory law.
The Supreme Court usually looks first to see whether there is a fundamental right by examining whether the right can be found deeply rooted in American history and traditions. Clearly, American history and tradition protect the right of a married couple not to have what they do in the privacy of their own bedroom made available for general view. This right to privacy is as fundamental as the right to marriage itself. Because this right is beyond cavil a fundamental one, the Courts are to apply strict scrutiny in determining whether its violation is of constitutional dimension.Strict scrutiny asks whether the governmental action was justified by a compelling state interest and whether the state action is narrowly tailored to address the state interest. No such state interests exist.In fact, the existence of a law criminalizing the action of releasing these images without consent shows that there is a legitimate government purpose in protecting the rights of the Ledbetters to their privacy in these images.
However, even if the right to privacy in the marital bedroom is not deemed to be a fundamental right, the courts must then apply a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law or government action is held valid. No government purpose whatsoever was served by the release of these images. They are not even tangentially related to any issue involved in any of the Twin Peaks cases. The only interests any litigant would have to viewing these images would be prurient and/or salacious. The only interests the State could have had in releasing them would have been vindictiveness.Thus, there was no rational basis for their release.
Any prosecutor willing to actively commit crimes against Mr. Ledbetter (and his wife) cannot be trusted to comply with Morton, Brady, or the other requirements of Texas criminal procedure in his case. It is unprecedented for a District Attorney’s office to engage in what can only be described as acts of “revenge porn” against Mr. Ledbetter and his wife, depriving them of due process and due course of law in the process.Justice, and the appearance of justice, are destroyed by such a prosecution. Any prosecutor who would willfully distribute numerous intimate images belonging to the Defendant to hundreds of viewers with no legitimate law enforcement purpose is in violation of numerous portions of the Texas Disciplinary Rules of Professional Conduct, and the ABA Criminal Justice Standards for the Prosecution Function. Mr. Ledbetter has a due process right to a prosecutor in this case who will not in turn criminally victimize him, and therefore, a new prosecutor must be appointed.