US v. McMurrey

• Decision Date: 05 August 1993
• Docket Number: Crim. No. H-92-254.
• Citation: 827 F. Supp. 424
• Parties: UNITED STATES of America, Plaintiff, v. Allen Lamar McMURREY, III, et al., Defendant.
• Court: U.S. District Court — Southern District of Texas

827 F. Supp. 424

UNITED STATES of America, Plaintiff, v. Allen Lamar McMURREY, III, et al., Defendant.

Crim. No. H-92-254.

United States District Court, S.D. Texas.

August 5, 1993.

Daniel Rodriguez, Asst. U.S. Atty., Houston, TX, for plaintiff.

David P. Cunningham, Houston, TX, for McMurrey.

David Gerger, Federal Public Defender, Houston, TX, for Hamilton.

William W. Burge, Houston, TX, for York.

OPINION ON PARDONS

HUGHES, District Judge.

1. Introduction.

During trial, the defendants sought to impeach a government witness by introducing evidence that he had been convicted of two felony charges in Oklahoma in 1973. The government argued that the conviction was not admissible because it was too remote and because the governor pardoned him in 1975. The defendants assert that prior convictions are admissible unless the governor pardoned him on proof of actual innocence. The court did not allow the defendants to impeach the witness with his Oklahoma conviction because:

A. The conviction happened twenty years ago, making it too remote under the rules of evidence; and

B. The Oklahoma pardon is fully effective in federal court.

2. The Federal Evidentiary Rule.

The federal rules of evidence attempt to go behind the face of a pardon and collaterally attack an executive action. Fed.R.Evid. 609(c). Generally, one may attack the credibility of a witness by introducing evidence of a prior conviction, but a conviction cannot be introduced if the witness was pardoned based on a finding of rehabilitation or actual innocence. Fed.R.Evid. 609(c). The advisory committee's note further saps the power from state executives to nullify a conviction by proclaiming baldly that if a conviction is pardoned only for the restoration of civil rights, the pardon is not relevant to character and may be admitted to attack credibility. Fed.R.Evid. 609 advisory committee's note.

3. Judges and Executives.

The defendants have essentially asked the court to allow the convictions to be used to impeach Calvin Stout, disregarding the Oklahoma pardon because Stout was not pardoned on proof of actual innocence. See Watkins v. Thomas, 623 F.2d 387 (5th Cir. 1980), cert. denied, 449 U.S. 1065, 101 S.Ct. 791, 66 L.Ed.2d 608 (1980); Gurleski v. United States, 405 F.2d 253 (5th Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2127, 23 L.Ed.2d 765 (1969); Watkins v. State, 572 S.W.2d 339 (Tex.Crim.App.1978). These cases state that a pardon for a reason other than proof of actual innocence does not obliterate a defendant's conviction. Even though a state may undo a conviction, the fact that it temporarily convicted someone is enough to cast a shadow of guilt and dishonesty on the person forever. Essentially, this line of cases says that although someone is pardoned, he remains guilty:

A pardon for any other reason than subsequent proof of innocence does not obliterate the defendant's transgressions particularly as they may bear on his present character and veracity. Any number of reasons may lie behind the granting of an executive pardon, but the granting of a pardon does not itself indicate any defect in previous convictions. Neither does it negate any bearing that they may have on present credibility. Gurleski, 405 F.2d at 266.

4. Federalism.

Collateral attack on a pardon by a court is unacceptable. It violates federalism for a federal court to eviscerate the effect of a state executive pardon. States are bound by the full faith and credit clause of the United States Constitution. While the full faith and credit clause does not bind the national government, due process does. Due process requires that federal courts give equal credit to state pardons as to state convictions. See, Robert H. Jackson, Full Faith and Credit (1945).

5. A Pardon Is a Pardon.

The federal evidentiary rule and supporting case law are logically deficient. Society prosecutes criminals to deny them their civil rights; therefore, by its nature, a pardon restores those rights. Because a pardon declares a person not guilty of a crime, it necessarily restores civil rights. An attack on character cannot be based on a conviction for a crime of which the prosecuting authority has formally declared one not guilty.

This rule allows federal courts to give effect to one state action while ignoring a second state action that voids the first one. By this reasoning, federal courts could allow a witness to be impeached if the state overturned his conviction on a "technicality" instead of on the merits. That a conviction is overturned is all that is important. Another court at another time cannot consider why a conviction was reversed and what effect that has on present credibility.

The reverse of this reasoning is equally disturbing. If federal courts have the power to weaken pardons, then it could have the power to strengthen accusations. For example, a federal court could concoct a "conviction"...