Selective prosecution is prohibited in Texas. The most well known form of selective prosecution is “racial profiling”. Typically a defendant must show that he or she was singled out for prosecution and that the government’s discriminatory selection of him or her for prosecution was “invidious or in bad faith.”[1]

An “invidious or in bad faith” prosecution means that the decision to prosecute was based on an impermissible consideration such as race, religion, or the desire to prevent a person’s exercise of conditional rights.[2]

Racial Profiling in Houston

Harris County, Texas, has an especially notorious history of selectively prosecuting based on race. In the past, Harris County prosecutors were three and a half times more likely to seek the death penalty when the defendant was black.[3] Similarly, juries were more than twice as likely to impose the death sentence on black defendants than on whites.[4]

The Gibson Case

There are countless stories of racial profiling by police and prosecutors. Such as in 2017 when a Harris County Constable arrested a black man, Marlin Gibson. One summer afternoon, Gibson was mowing lawns in a northwest Harris County neighborhood as part of his growing lawn care business. After cutting various client’s yards, Gibson packed up his mower, weed eater, and other gardening supplies into his pickup. Hoping to expand business in the area Gibson grabbed a couple of business cards out of the cab and placed them on the doors of his last client’s neighbors.

He was seen walking back to his truck by a Harris County Constable.

The officer pulled up next to him and demanded to see Gibson’s driver’s license. Gibson did not have his ID on his person so he gave the officer his name and birthday. The officer entered the info his cruiser’s computer—incorrectly. The Constable then demanded that Gibson turn around and put his hands behind his back.

Gibson, naturally confused, asked if he could have the officer’s card or badge number and what he was being arrested for. The officer ignored Gibson’s request and called for backup. He aggressively put Gibson in handcuffs for “lying about his age”.

Gibson was booked on trumped up charges and released on bail later that day. While he was in jail waiting for bail, officers learned that he had a warrant out for outstanding misdemeanor tickets. Instead of booking him on these outstanding tickets while he was in their custody, officers let him out on bail. Upon release, Gibson went to a friend’s house to process the day’s events. Gibson was sitting in his friend’s home when officers showed up with a K-9 unit to arrest him again. Officers stood out in the front yard yelling that they “just wanted to talk” to Gibson.

Gibson feared that the police were just harassing him and refused to exit the home. Officers waited until Gibson went to the bathroom before they broke down doors. The K-9 unit led the way to the bathroom where the dog bit Gibson and officers aggressively arrested Gibson yet again. This was an obvious case of police abuse and racial profiling.[5]

Political Prosecutions

But selective prosecution doesn’t just involve racial profiling. Sometimes, prosecutors selectively prosecute for political reasons.

Unsavory DAs

The district attorney overseeing cases in Waco was caught by federal officials trying to prosecute people exclusively for political gain.[6] Harris County’s former District Attorney, Devon Anderson, faced similar accusations. Ms. Anderson feared voters would see her as weak on crime if she failed to keep conviction numbers up. In order to maximize convictions, Anderson tried to prosecute those with mental disabilities.[7] Although Anderson was also caught stoking racial tensions by prosecuting individuals she believed to be involved with the Black Lives Matter movement.[8]

If a defendant is able to prove that his or her charges were the result of selective prosecution, the case against him or her may be thrown out. If you believe you have been a victim of prosecutorial misconduct, contact the Paul Morgan Law Office for information on possibly securing legal relief.