A federal judge in Kansas City, Kan., took what she called the “extraordinary” step of dismissing a man’s drug indictment because of the misconduct of a prosecutor, who also came under fire in the wrongful conviction of Lamonte McIntyre.
U.S. District Judge Julie Robinson, in an order Tuesday freeing Gregory Orozco, wrote that federal prosecutor Terra Morehead committed misconduct by threatening a witness. She also took Morehead to task for belatedly disclosing evidence that could have helped Orozco’s case.
Morehead, who works in the U.S. attorney’s office in Kansas, previously faced allegations of witness intimidation and prosecutorial misconduct as a Wyandotte County assistant prosecutor in the case of McIntyre, who was wrongly convicted in a 1994 double murder and was released in October.
Tuesday’s order vacating Orozco’s convictions on charges of conspiracy to possess with intent to distribute methamphetamine, and possession of a smaller amount, came with scathing criticisms of Morehead’s conduct in the case.
“The evidence demonstrates that AUSA Morehead acted in bad faith,” Robinson wrote. In her order, the judge noted that as part of a threat against the witness, Jose Luis Ruiz-Salazar, Morehead said she knew the federal prosecutor pursuing a separate case against him in Missouri.
The judge cited “strong evidence that Morehead communicated a veiled threat of prosecution or threat of creating further complications in his case if Ruiz-Salazar ‘got in her way’ by testifying.”
That threat violated Orozco’s right to a fair trial, the judge wrote. By Wednesday morning, he was released.
In freeing Orozco, Robinson employed what she called the “extraordinary, rarely-invoked remedy” of dismissing the charges with prejudice so that prosecutors could not again pursue them. A new trial, Robinson wrote, could not repair the damage “even if the court was convinced that the government would not further interfere with the defendant’s right to present a defense.”
In the order, Robinson added a footnote referencing The Star’s coverage of the McIntyre case, writing, “This prosecutor should have had a heightened awareness of the bounds of fair play and the gravity of witness interference.”
Jim Cross, a spokesman for the U.S. attorney’s office, said the office would not comment on the judge’s order. He did not respond to questions.
Lawrence Fox, who teaches legal ethics at Yale Law School, said it was troubling that the Orozco case is the second in which Morehead is accused of intimidating a witness.
Fox testified in the October hearings in Wyandotte County for McIntyre, who was shown to be innocent after spending 23 years in prison.
“This is the second example of it,” Fox told The Star. “In (Orozco) we have a finding. Not only a finding, but dismissal of all charges. Seeing two examples of the same intimidation vis-à-vis witnesses is troubling.”
He said a pattern of the same conduct could suggest insufficient training or oversight of obligations that federal prosecutors have.
“This is real prosecutorial misconduct with real consequences to the ability of the prosecution to succeed,” Fox said.
Morehead left the Wyandotte County prosecutor’s office and joined the U.S. attorney’s office in 2002. At the time, she also taught criminal law at Kansas City, Kan., Community College.
Two years earlier, she had been recognized for her work on behalf of crime victims with the Kansas attorney general’s Commitment to Crime Victims’ Service Award.
Efforts to reach Morehead by phone Wednesday were unsuccessful.
Orozco’s case began years earlier, on Feb. 23, 2013, when he was in a truck with two other people searched by U.S. Marshals looking for a fugitive. The fugitive wasn’t there, but the marshals seized from the truck a small, pink nylon case containing SIM cards and a flash drive, along with more than 40 grams of meth.
In the truck with Orozco were a man and a woman. The marshals let the three go that night. Orozco, indicted later, was the only one charged.
Problems with the trial appeared the morning it was scheduled to begin on Dec. 12, 2016, when Morehead gave the defense a new piece of evidence: the three SIM cards and flash drive taken from the same small case as the meth representing the drug possession charge against Orozco.
Minutes before trial was to begin, Orozco asked for the trial to be delayed because he had just received the new evidence.
Morehead told the court that the late disclosure of the evidence was inadvertent, that she had become aware of it shortly before trial.
When the judge asked Morehead if she intended to use the SIM cards and flash drive as evidence, Morehead responded that they contained “random, discrete photos” of “normal things” that “didn’t appear to be anything related” to the case.
“Morehead did not inform the court that this evidence was potentially exculpatory,” the judge wrote.
In fact, the new evidence contained more than 200 photos of the woman who was in the truck with Orozco when it was searched, showing her with friends and family. They figured largely in the defense, suggesting that the meth did not belong to Orozco.
During trial, Orozco sought to call as a defense witness Ruiz-Salazar, who would directly contradict the testimony of a prosecution witness.
Before Ruiz-Salazar testified, Morehead spoke to his attorney. Morehead warned that if Ruiz-Salazar testified, ramifications against him were “a strong possible outcome.”
Ruiz-Salazar backed out of testifying for Orozco. Later, as the two were being driven back to the Leavenworth Detention Center, he recounted to Orozco that Morehead told the attorney that if “he gets in my way, I’m going to get in his way.”
Another witness who intended to testify for the defense also backed out. Orozco was convicted on the two drug counts.
He soon filed a motion seeking a new trial. Ruiz-Salazar testified that he had felt threatened that if he testified in Orozco’s case, it would impact his own case. It was after hearing that message from Morehead that he backed out of taking the stand, he said.
After hearing the testimony, Judge Robinson issued the order vacating the convictions and dismissing the indictment with prejudice.
“The record reflects that Ruiz-Salazar was actually intimidated, and as a result did not testify in this case,” Robinson wrote.
“Based on the evidence, the court finds that the prosecutor in this case, Assistant United States Attorney Terra Morehead, substantially interfered with a defense witness’s decision to testify,” Robinson wrote.
The judge criticized Morehead also for her priorities at the beginning of the trial. That morning, Morehead filed information in court to establish a prior conviction on Orozco’s record, which would have doubled the mandatory minimum sentence, raising it from 10 to 20 years.
Morehead was “seemingly more concerned about filing the sentence enhancement, than she was about the fact that she had disclosed exculpatory information to the defense just minutes before trial,” Robinson wrote.
Robinson’s criticisms of Morehead echoed that of defense lawyers who have seen similar behavior.
In the McIntyre case, an attorney working for his release, Cheryl Pilate, said Morehead forced an eyewitness “to testify falsely by threatening to have her children taken away.”
Pilate also wrote in a motion that Morehead committed a “gross violation” of the law by withholding a statement made to her by a relative of a victim in the case.
In seeking McIntyre’s release, Pilate raised questions of bias in the original trial because of a past and undisclosed romantic relationship between Morehead and the Wyandotte County District judge presiding over McIntyre’s case, J. Dexter Burdette.
Another defense attorney accused Morehead of misconduct in her handling of a plea bargain in the case of Trent Percival, who was charged in 2012 along with 42 others with a conspiracy to deal cocaine and marijuana.
Percival decided to plead guilty and cooperate with the government’s case against other defendants, but was still sentenced in 2015 to 10 years in prison.
Percival’s attorneys objected to the sentence, saying it did not square with his culpability or reflect the assistance he offered to the government’s case.
Morehead, according to court documents, said that Percival was not substantially helpful to the case, even though the information he provided was used negotiate guilty pleas from other defendants.
Percival’s attorneys argued that Morehead’s decision not to ask the judge for a lower sentence was “not legally sufficient.”
“This misconduct on the part of the prosecution was unlawful, and infected this case so much that it seriously affected the fairness, integrity or public reputation of judicial proceedings,” reads Percival’s motion to vacate his sentence.
Percival was later re-sentenced to five years in prison and subject to a $300,000 forfeiture order.
The Kansas Supreme Court cited Morehead’s prosecutorial misconduct in a Wyandotte County trial when it overturned a 2001 murder conviction. The court ruled that Morehead erred in closing arguments by implying that premeditation could be instantaneous, gesturing as if pulling a trigger. “One squeeze of a trigger is all it takes,” she told the jury.
Barry Pollack, the immediate past president of the National Association of Criminal Defense Lawyers, said prosecutors rarely face the same consequences that a defense attorney would for the same behavior.
“If a defense attorney were ever to threaten a witness with these adverse consequences, there is no doubt in my mind the government would quickly charge that attorney with obstruction of justice.
“There should be significant consequences each and every time.”
Several government authorities exist that could take action against a prosecutor who repeatedly commits violations, said Barbara Glesner Fines, professor of law at the University of Missouri-Kansas City.
On the state level, the Kansas Disciplinary Administrator’s Office under the Kansas Supreme Court can take action against an attorney. A federal prosecutor can also be sanctioned directly by a judge or by the U.S. District Court in which they work.
Also the U.S. attorney’s office, as an employer, can take action against prosecutors.
“There are a lot of people who could step up to the plate and say this has to stop for the protection of the public, and there are lots of ways it could be done,” Glesner Fines said.
But, she said, both because of the number of authorities involved, and the status of a prosecutor as a government lawyer, “It’s a lot more complicated to discipline a prosecutor.”
The U.S. attorney’s office in Kansas has also had problems with other prosecutors in Kansas City, Kan. In June, special assistant prosecutor Erin Tomasic quit after revealing she had listened to attorney-client phone calls at Leavenworth Detention Center, contrary to her previous statements in court.