Court says man should be tried again after prosecutor is accused of misconduct
A federal appeals court agreed with a Kansas judge’s finding that a prosecutor violated a drug trafficking defendant’s rights during his trial in Kansas City, Kan.
But the court said a federal judge went too far in dismissing the criminal charges.
A majority of three judges on the Tenth Circuit Court of Appeals ruled last month that Kansas District Court Judge Julie Robinson should consider a new trial for Gregory Orozco.
Orozco was convicted of drug offenses in 2017 but went free after Robinson concluded that assistant U.S. attorney Terra Morehead intimidated one of Orozco’s trial witnesses into not testifying.
One appellate judge agreed with Robinson’s conclusion that Orozco’s rights were violated and said in a dissenting opinion that Robinson should have the discretion to consider dismissing indictments if she thought the prosecutorial misconduct was flagrant.
Orozco’s appellate attorney filed a motion on March 12 asking the full panel of Tenth Circuit judges to take up the matter.
The dismissal of Orozco’s indictments in 2017 came not quite two months after a major development in another case that raised questions about Morehead.
Lamonte McIntyre, a Kansas City, Kan., man who was convicted in a 1994 double-homicide that Morehead prosecuted while she worked in the Wyandotte County District Attorney’s Office, was set free after it was determined that he was wrongfully convicted.
In that case, McIntyre’s attorneys brought evidence that Morehead had ignored testimony from eyewitnesses who said McIntyre was not the shooter, coerced testimony from other witnesses and had an undisclosed previous romantic relationship with the judge who presided over the trial.
The dismissal of Orozco’s indictment in 2017 hinged on a conversation that Morehead had with the attorney of a witness who was prepared to testify on Orozco’s behalf. Orozco was headed for trial following his 2013 arrest by a deputy U.S. Marshal who found Orozco and two others in a car with firearms, cash, marijuana and methamphetamine.
That witness, Jose Luis Ruiz-Salazar, was expected to testify that it was he who sold Orozco a Camero, which would contradict testimony from earlier in the trial by Ruiz-Salazar’s brother. Ruiz-Salazar at the time was facing criminal charges in federal court in Missouri.
Before Ruiz-Salazar testified, Morehead had a conversation with his attorney. After that conversation, Ruiz-Salazar no longer wanted to testify and Orozco decided to testify on his own behalf because he felt he had no other choice.
Orozco recounted in court the following day a conversation he had with Ruiz-Salazar in a van transporting both men back to jail: Ruiz-Salazar said that Morehead told his attorney that “if you (Ruiz-Salazar) get in my way, I’m going to get in your way,” which Ruiz-Salazar took as a threat that his testimony would create problems for him in his drug case in Missouri.
Ruiz-Salazar’s attorney later testified that Morehead had warned that Ruiz-Salazar could be charged with perjury if he testified.
That was enough for Robinson to conclude that Morehead was acting in bad faith by implying that a witness could suffer consequences for testifying.
In dismissing Orozco’s indictment, Robinson noted that it was an extraordinary step to take, but one that was necessary because a new trial wasn’t enough to undo the damage to Orozco’s defense.
But a majority of Tenth Circuit judges decided otherwise.
“The district court never addressed why more narrowly tailored sanctions would not have provided a sufficient deterrent effect,” the ruling says, “and we therefore conclude that the government should be permitted to retry Mr. Orozco.”