Opposition Brief — Eric Lyle Williams, Petitioner v. Texas

No. 20-7251

______________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________

ERIC LYLE WILLIAMS,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

(CAPITAL CASE)

______________________________

On Petition for Writ of Certiorari from the

Court of Criminal Appeals of Texas

______________________________

RESPONDENT’S BRIEF IN OPPOSITION

______________________________

Counsel for Respondent

BILL WIRSKYE & TOBY SHOOK

Criminal District Attorneys Pro Tem

Kaufman County, Texas

JOHN R. ROLATER, JR.

Assistant District Attorney Pro Tem

Kaufman County, Texas

LIBBY LANGE

Assistant District Attorney Pro Tem

Kaufman County, Texas

LISA BRAXTON SMITH

Counsel of Record

Assistant District Attorney Pro Tem

Kaufman County, Texas

State Bar No. 00787131

Russell A. Steindam Courts Building

2100 Bloomdale Rd., Ste. 200

McKinney, Texas 75071

(972) 548-4331 (Office)

lsmith@co.collin.tx.us

QUESTIONS PRESENTED

The Petitioner, Eric Lyle Williams, presents two questions for review. First, he

asks whether the participation of “a conflicted and recused prosecutor” violates due

process. Second, he asks whether “the undisclosed participation of a conflicted

prosecutor” amounts to structural error not amenable to a harm analysis.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................................................................................................... ii

TABLE OF AUTHORITIES........................................................................................................................ iv

STATEMENT OF THE CASE..................................................................................................................... 1

Procedural History ................................................................................................................................ 1

Factual Summary.................................................................................................................................... 1

ARGUMENT .................................................................................................................................................... 5

Findings Rejecting Due Process Claim .......................................................................................... 5

Misrepresentations and Omissions of Fact ................................................................................ 6

State Court Recognized Due Process Right ............................................................................. 13

State Court’s Opinion Is Unpublished ........................................................................................ 17

CONCLUSION .............................................................................................................................................. 18

iii

TABLE OF AUTHORITIES

Cases

Commonwealth v. Balenger,

704 A.2d 1385 (Pa. Super. 1997) ........................................................................................ 15

Ex parte Reposa,

No. AP-75,965, 2009 WL 3478455 (Tex. Crim. App. 2009) .................................... 14

Haywood v. State,

344 S.W.3d 454 (Tex. App. – Dallas 2011, pet. ref’d) ................................................. 14

Landers v. State,

256 S.W.3d 295 (Tex. Crim. App. 2008) ........................................................................... 14

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) .................................................................................................... 14, 15, 16

People v. Dekraai,

5 Cal. App. 5th 1110, 210 Cal. Rptr. 3d 52 (Ct. App.), modified, No. G051696,

2016 Cal. App. LEXIS 1089 (Dec. 14, 2016) .................................................................... 15

Person v. Miller,

854 F.2d 656 (4th Cir. 1988), cert. denied, 489 U.S. 1011 (1989) ........................ 16

United States v. Scrushy,

721 F.3d 1288 (11th Cir. 2013), cert. denied, 571 U.S. 1185 (2014)................... 15

United States v. Sigilito,

759 F3d 913 (8th Cir. 2014), cert. denied, 574 U.S. 1104 (2015) ......................... 14

Villalpando v. Reagan,

121 P.3d 172 (Ariz. Ct. App. 2005) ..................................................................................... 15

Williams v. Pennsylvania, 136 S.Ct. 1899 (2020)........................................................................ 16

Young v. United States ex rel. Vuitton et Fils S.A.,

481 U.S. 787 (1987) ............................................................................................................ 14, 16

Statutes

Tex. Code Crim. Proc. art. 2.07(b-1).................................................................................................... 4

iv

Rules

Tex. R. App. P. 77.3................................................................................................................................... 17

v

The State files this brief in opposition to Williams’ petition for certiorari

review.

STATEMENT OF THE CASE

Procedural History

Williams was sentenced to death for the capital murder of Cynthia and Mike

McLelland. His conviction and sentence were affirmed on direct appeal. Williams v.

State, No. AP-77,053, 2017 WL 4946865 (Tex. Crim. App. Nov. 1, 2017) (not

designated for publication). Williams then filed an application for habeas relief

under state law. The trial court conducted a lengthy hearing on the habeas claims at

which both sides presented live testimony, affidavits, and other evidence.

Afterward, the court issued fact findings and recommended the denial of relief. The

Texas Court of Criminal Appeals adopted the trial court’s findings and denied relief.

Ex parte Williams, No. WR-85,942-01, 2020 WL 5540714 (Tex. Crim. App. Sept. 16,

2020) (not designated for publication). Williams seeks certiorari review of the Court

of Criminal Appeals’ decision. His petition rests solely on the court’s rejection of his

claim that his right to due process was violated by “a recused and conflicted”

prosecutor’s participation in his prosecution.

Factual Summary

On January 31, 2013, Mark Hasse, an Assistant District Attorney for Kaufman

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County, Texas, was shot to death outside the courthouse. (Finding 277). 1 Two

months later, the elected DA of Kaufman County, Mike McLelland, and his wife,

Cynthia, were shot to death in their home. (Finding 293).

The murders – a patent attack on the criminal justice system – rocked the

Kaufman County DA’s Office. In addition to the emotional impact, they crippled the

office’s day to day operations. (Findings 325, 332; 8 WRR 64). 2 The office employed

only thirteen prosecutors, Hasse being the one with the most felony trial experience.

(Findings 271-72, 275). Overwhelmed, McLelland, and later his first assistant,

voluntarily recused the office from the investigation and prosecution of the cases.

(Findings 278, 281, 288, 294-95, 396). Two prosecutors pro tem – Bill Wirskye and

Toby Shook – were appointed to take over. Both were well-known former

prosecutors with significant experience prosecuting murders. (Findings 282-83,

286, 289). Together, Wirskye and Shook spearheaded an unprecedented

1 “Findings” references the trial court’s findings of fact and conclusions of law which the

Texas Court of Criminal Appeals subsequently adopted. The findings accompany Williams’

petition as Appendix B.

2 Kaufman District Attorney Pro Tem Bill Wirskye testified:

It was PTSD. They were very emotional. You know, that office took a gut

punch after Hasse was, Mark Hasse was murdered. After the McLellands

were murdered, it was completely decapitated, and those prosecutors were

just a shell of themselves. And we had concerns whether that office was going

to continue to exist as a viable prosecutor’s office and make their docket calls

and whether criminal justice was actually going to continue on in the days

after the murders.

2

investigation that culminated in Williams’ apprehension, conviction, and death

sentence. They were assisted by eighteen investigative agencies, both state and

federal, and they received resources from multiple DA’s offices, including office

equipment, work space, and manpower. (Findings 290, 325-30; 8 WRR 71-72, 90-

91, 111-12).

Initially, the suspect pool was quite large. Hasse, a pugnacious personality

who began his career in the Dallas DA’s Office decades before, had prosecuted

hundreds of felons over the years. (Findings 279, 291). That pool shrank

considerably after Mike McLelland’s murder, however. There existed one obvious

common denominator between the two murdered prosecutors – Williams. (Finding

296). A few months before the murders, Hasse and McLelland had successfully

prosecuted Williams – a Kaufman County Justice of the Peace – for burglary.

Williams turned down Hasse’s plea bargain offer, and a reputedly contentious trial

followed. In the end, Williams’ sentence was probated. But as a result of his

conviction, he lost his bench and his bar license, leaving him without income or

health insurance. (Finding 276; Findings “Background Facts” at 8, 13, 19).

The Kaufman County DA’s Office voluntarily recused 3 itself from the

(8 WRR 64).

Texas statutory law provides prosecutors who are not disqualified a vehicle for

voluntarily removing themselves from a case. Thus, a prosecutor without an actual conflict

3

3

McLellands’ murder case, and Wirskye and Shook were appointed. (Findings 29495, 396). In the months following the McLellands’ murders, Wirskye, Shook, and a

multitude of law enforcement officers doggedly pursued and accrued a mountain of

evidence inculpating Williams in the murders. Most notably, they linked him to: the

weapon used to kill Mark Hasse, the casings found at the scene of the McLellands’

murders, the Crime Stoppers tips claiming credit for the murders and containing

information known only to the killer, and a storage unit containing a cache of

weaponry, police gear. Also found was a surplus police vehicle that had been video-

recorded leaving and returning to the unit the morning of the McLellands’ murders.

(Findings 325-28; Findings “Background Facts” at 8-18). In addition, Williams’ wife,

Kim Williams, cooperated and turned State’s witness, admitting she helped Williams

plan and execute the murders as revenge for his burglary prosecution. (Finding 480;

Findings “Background Facts” at 18-24).

Armed with this evidence, Wirskye and Shook tried Williams for the capital

murder of Cynthia and Mike McLelland. (Findings “Procedural History” at 45).

Several prosecutors from other DA’s offices assisted them, including Sue Korioth,

the appellate prosecutor in the Kaufman County DA’s Office. (Finding 347). It is

Korioth’s involvement on which Williams bases his due process claim. (Findings

of interest may nonetheless remove himself from a case based on “good cause.” Tex. Code

Crim. Proc. art. 2.07(b-1) (“An attorney for the state who is not disqualified to act may

request the court to permit the attorney’s recusal in a case for good cause, and on approval

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263-64).

On state habeas review, Williams argued Korioth had a conflict of interest

that was imputed to Wirskye and, thus, deprived him of a disinterested prosecutor.

(Findings 263-64, 321). Williams seeks certiorari review to revisit the issue, but he

presents no valid basis for doing so.

ARGUMENT

Williams argues the state court’s ruling on his due process claim is predicated

on “unsupported, inconsistent findings that the record patently contradicts.”

(Petition at 23). This is untrue. The state court rationally rejected Williams’ claim

based on facts firmly founded in the record, and Williams’ petition disregards and

misrepresents facts seminal to that ruling. Furthermore, disposition of Williams’

claim does not turn on this Court recognizing a due process right to a disinterested

prosecutor. The state court recognized that constitutional right. It simply found no

violation of it in Williams’ case. For these reasons, further review by this Court is

unwarranted.

Findings Rejecting Due Process Claim

The state court rejected Williams’ due process claim because he failed to

prove Korioth had an actual conflict of interest that could be imputed to Wirskye.

(Findings 266-68). Specifically, the court found Korioth was not a fact witness and

of the court, the attorney is disqualified.”).

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had no personal ax to grind against [Williams].” (Findings 423, 424, 447).

Consequently, the court found Williams failed to prove “Korioth was partial or

‘interested’ or that she had an actual conflict of interest in the case.” (Finding 460).

Moreover, the court found Williams presented no evidence that Korioth influenced

the investigation, and no evidence indicated that she swayed the investigation to

focus on him. (Finding 343). In fact, the court found Williams “overstate[d] Korioth’s

level of participation and influence.” (Finding 368). And the court found there was

no evidence that Wirskye or Shook abdicated their decision-making responsibilities

to Korioth. (Finding 370, 391). In short, the court found Williams was tried by

disinterested prosecutors. The court based these findings on evidence presented

during the writ proceedings, including testimony from Korioth and Wirskye and

emails reflecting contributions made by Korioth.

Misrepresentations and Omissions of Fact

In his petition, Williams portrays Korioth’s motives and role in an altogether

different light. In doing so, he misrepresents and omits facts found by the state court

and supported by the evidence. And ultimately, he leaves a false picture of Korioth’s

intentions and her influence on the investigation and prosecution.

First, he misrepresents Toby Shook’s role. According to Williams, Shook was

appointed “as an assistant prosecutor pro tem.” (Petition at 3). But the orders of

appointment show undisputedly that Wirskye and Shook were both appointed as

6

District Attorneys pro tem. 4 (2nd Supp. CR 4-13). And the state court recognized the

same throughout its findings. (Findings 289, 295, 324, 345, 370). These

appointments gave both Wirskye and Shook all of the powers and duties of the

elected DA in Williams’ case. Id. Yet, notably, Williams focused his interested

prosecutor claim in state court on Korioth’s influence on Wirskye. He neither argued

nor proved what, if any, influence she had on Shook. (Findings at p. 98, fn. 22). Now,

in turn, he attempts to downplay Shook’s role.

Second, Williams portrays Korioth as an influential playmaker who made

significant contributions to the investigation and prosecution. He asserts “Korioth’s

involvement infected the entire framework of [his] trial such that her efforts [were]

virtually inextricable from those of Prosecutor Pro Tem Wirskye.” (Petition at 27).

Also, he refers to Korioth as a member and an agent of the prosecution team who

maintained frequent contact with Wirskye, Shook, and various law enforcement

officers. (Petition at 6-8, 22).

The trial court found, however, that Williams “overstates Korioth’s level of

participation and influence.” (Finding 368). The court determined Korioth was one

of a plethora of people involved in the case, including officers from multiple state

4 Wirskye explained that “[p]rosecutors were dying”; so he and Shook were both fully

empowered as the pro tem in case one of them was murdered in the course of the

investigation and prosecution. Wirskye referred to this as a “built in redundancy.” (6 WRR

69).

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and federal law enforcement agencies and prosecutors from other DA’s offices and

the U.S. Attorney’s Office for the Northern District of Texas. (Findings 325, 347).

Korioth was peripherally involved in the investigation, serving largely as a liaison

with the Kaufman County DA’s Office. (Findings 330-35). Wirskye placed boundaries

on their conversations, which Korioth respected, and he gave Korioth information

“kind of on a need to know basis.” (Finding 373, 375-79). And although Korioth gave

Wirskye legal advice, it was akin to that of a researcher or paralegal. (Finding 336,

372, 380, 382-90). Korioth was a well-respected appellate attorney and friend who

had provided Wirskye similar assistance in his private practice. (Findings 371-72).

Wirskye and Korioth both expressly denied she was a member of the prosecution

team or had any decision-making authority. (Findings 337, 348-49, 373, 378, 381).

Williams’ portrayal of Korioth’s involvement rests largely on the emails she

was party to. (Petition 4, 7). But the court disagreed with Williams’ take on these

emails. The court found the emails show Korioth generally assisted Wirskye, but

“[t]hey do not establish Korioth was a decision-making member of the team or

otherwise influenced Wirskye such that he was not making his own independent

decisions.” (Finding 307). And while recognizing that the emails show Korioth

offered her opinion on certain issues, the court found “the evidence does not show

if, or to what extent, Wirskye adopted and applied those opinions.” (Finding 308).

The court also rejected Williams’ claim that the number of emails demonstrates an

inappropriate level of involvement. Placing the emails in proper context, the court

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noted the wide-ranging and unique scope of the investigation and prosecution and

the enormous amount of emails Wirskye exchanged with others throughout. At

times, Wirskye was party to over 100 emails a day. (Findings 309, 350-51). He was

also attending countless meetings with various investigative agencies. By

comparison, Korioth attended very few meetings, a fact the emails do not contradict.

(Findings 326-28, 337, 352-60).

Third, Williams states Korioth “exhibited a personal hatred toward” him and

“remained involved in the case to fulfill her personal vendetta against” him.

(Petition at 6, 18). This is a gross mischaracterization of Korioth’s personal feelings

about Williams.

The state court found Korioth had no personal ax to grind against Williams;

nor did she have a deep resentment and animosity toward him on a personal level

that was so intolerable as to create an actual conflict of interest. (Findings 446-47).

As evidence of Korioth’s animus toward him, Williams points to her profane

references to him in emails and in a book Erleigh Wiley (the current Kaufman

County DA) wrote about the murders. (Petition at 6, 18). Korioth did not deny

making the statements. (Findings 440, 444, 458). But as she stated and Wirskye

confirmed, she was known for her “foul mouth” and used such profanity with

regularity. Thus, her remarks did not indicate an abnormal hostility toward

Williams. (Findings 441-42, 455). Instead, as Korioth explained, any animus

9

reflected in her remarks stemmed from her disregard for someone who would kill

three people and steal county property – not from some unrelated, personal dislike

of Williams. (Findings 444, 458). Her sole motivation was to see the true murderer –

whoever that was – caught and prosecuted so that the killing would stop. (Finding

456).

Indeed, Korioth had no grounds for personal animosity toward Williams. She

had little dealings with him before the murders and was only minimally involved in

his burglary trial. (Findings 448-53). In her words, she was not impressed by him

because she was not impressed by small town JPs, but otherwise, she really had no

opinion of him. (Findings 454-55). Moreover, Korioth did not have strong personal

feelings for Hasse. Williams premises much of his argument on his assertion that

“Korioth and Hasse were close friends.” (Petition at 5). But this assertion was based

solely on a statement from a law review article Wirskye wrote after trial, and the

state court found it unreliable. (Finding 407). Korioth testified she and Hasse were

not friends but “worked find together.” (Finding 409). Korioth had only passing

dealings with Hasse when they worked together in the Dallas County DA’s Office.

(Finding 275). They interacted more in the Kaufman County DA’s Office, but their

relationship remained strictly professional. (Findings 408-09). Korioth stated,

“[W]e, to say things mildly, we saw things very differently in life; and we didn’t,

didn’t socialize.” (Finding 409). The state court found Korioth’s testimony relevant

and conclusive evidence of the true nature of the relationship. (Finding 410).

10

Fourth, Williams asserts that “Korioth had intimate, firsthand knowledge of

the circumstances into Hasse’s and the McLellands’ deaths, not as a prosecutor or

investigator, but as a fact witness to the cases.” (Petition at 5-6). According to him,

Korioth provided “critical information” that pointed investigators to him before he

was a suspect. (Petition at 6, 16). These assertions are patently false.

The court found Korioth was not a fact witness and that Williams overstated

the significance of the information she gave investigators. (Findings 424, 430). The

entire DA’s Office was interviewed, and Korioth did not possess unique information.

(Findings 425, 427). What she knew was, in large part, known by others, e.g.,

Williams’ “hit list” and McLelland’s focus on Williams after Hasse’s murder. Plus, her

statements about how the killer gained entry into the McLellands’ home were mere

speculation, not fact. (Findings 340, 428-29). Korioth was at home in Dallas at the

time of all the murders. (Findings 277, 423).

Furthermore, unlike McLelland, Korioth was not hyper-focused on Williams

for Hasse’s murder. Hasse had been prosecuting for many years and likely made

many enemies with his aggressive style. (Finding 279). Korioth thought there other

possible suspects and felt McLelland had tunnel vision where Williams was

concerned. (Findings 338, 341, 457, 477).

More importantly, Korioth had nothing to do with Williams becoming a

suspect. Williams was a person of interest moments after Hasse was shot. (Finding

11

339). That very morning, the sheriff sent deputies to his house to investigate his

whereabouts and possible connection to the crime. (Findings at p. 15). And despite

the suspicions of many, the investigation did not just focus on Williams. (Findings

291, 342). Williams became the primary suspect only after the McLellands’ murders;

at that point, he was the common denominator between the murders. (Finding 296,

339).

Finally, throughout his petition, Williams asserts that Korioth’s assistance

was covert and secret. (Petition at ii, 4, 19 n.5, 24, 26-28). He maintains Wirskye

kept it from opposing counsel so they could not object to it. (Petition at 4).

According to him, Korioth’s involvement was discovered after trial in emails his writ

counsel “uncovered.” (Petition at 4). Williams never presented this fact issue to the

state court for resolution, conveniently raising it for the first time in this Court. Still,

Wirskye expressly refuted it during his testimony. According to him, “Everybody

knew [about Korioth’s assistance]. I mean it was never a secret.” He also stated that

the defense team was included on some of the emails which included Korioth. (8

WRR 80-81). Moreover, the record excerpt Williams relies on shows his trial

counsel was aware of Korioth’s presence during the proceedings, even if he was

uncertain of the reason for it. (5 WRR 25). 5

5 John Wright testified, “Sue Korioth was an assistant district attorney in Kaufman County.

And I, I don’t, I don’t know if she had any official role in the prosecution or not. I, I saw her

12

Also, Williams’ counsel did not unearth hidden emails. Williams obtained the

emails in question because the State volunteered them. Before the writ application

was filed, Wirskye opened his trial files, including work-product, to state habeas

counsel. He did this in response to an informal request, not the formal discovery

process. (Finding 299-301). Then, during the writ proceedings, Wirskye offered

counsel hundreds of additional emails he later recovered from his email account and

laptop. (Finding 302). Korioth’s involvement in the case was not hidden from

Williams.

Plainly put, Williams’ petition rests on assertions of fact that were rejected by

the state court based on substantial, credible record evidence. Thus, even if this

Court were inclined to recognize a due process right to a disinterested prosecutor,

the outcome of Williams’ case would remain unchanged.

State Court Recognized Due Process Right

In addition to his inaccurate account of the facts, Williams misrepresents the

state court’s position on the law. He argues that while state and federal courts have

recognized that due process mandates a disinterested prosecutor, the Texas Court

of Criminal Appeals refused to recognize the right in his case. (Petition at 9-10). The

court’s findings reflect otherwise.

Based on this Court’s precedent and state law interpreting the same, the state

in the courtroom few times, but I don’t know what her role was. She did not address the

13

court held that due process prohibits prosecution by a person with an actual conflict

of interest. (Finding 314) (citing Ex parte Reposa, No. AP-75,965, 2009 WL 3478455

(Tex. Crim. App. Oct. 28, 2009) (orig. proceeding) (not designated for publication),

Landers v. State, 256 S.W.3d 295 (Tex. Crim. App. 2008), and Haywood v. State, 344

S.W.3d 454 (Tex. App. – Dallas 2011, pet. ref’d)). The court determined that such a

conflict exists if the “potential for misconduct is deemed intolerable.” (Finding 315)

(citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987)). It is

intolerable per se for a prosecutor to prosecute someone he previously represented

in the same case. (Finding 316) (citing Reposa). But if the conflict arises from some

other cause, it must cause the defendant actual prejudice to be intolerable. (Findings

317-18) (citing Reposa and Haywood). Thus, a conflict premised on a prosecutor’s

personal bias or grudge against the defendant does not merit disqualification unless

an actual conflict exists that prejudiced the defendant. (Finding 318) (citing

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980), Reposa, and Haywood).

This interpretation of the law is consistent with Eighth and Eleventh Circuit

precedent. See e.g., United States v. Sigilito, 759 F3d 913, 928 (8th Cir. 2014), cert.

denied, 574 U.S. 1104 (2015) (interpreting Young to require a showing of an actual

conflict of interest); United States v. Scrushy, 721 F.3d 1288, 1307-08 (11th Cir.

2013), cert. denied, 571 U.S. 1185 (2014) (interpreting Young to require a showing

judge or the jury so far as I recall.” (5 WRR 25).

14

of a clear conflict of interest). Even some of the cases Williams cites recognize that

there can be no violation of the right to a disinterested prosecutor without the

existence of an actual conflict. See e.g., People v. Dekraai, 5 Cal. App. 5th 1110, 210

Cal. Rptr. 3d 52 (Ct. App.), modified, No. G051696, 2016 Cal. App. LEXIS 1089 (Dec.

14, 2016) (upholding trial court’s conclusion that “there was a genuine conflict of

interest”); Villalpando v. Reagan, 121 P.3d 172, 175-77 (Ariz. Ct. App. 2005)

(refusing to find due process violation based on the “mere appearance of

impropriety”); Commonwealth v. Balenger, 704 A.2d 1385, 1390 (Pa. Super. 1997)

(holding prosecution is barred where actual conflict of interest affecting prosecutor

exists).

Yet, Williams would have this Court disavow the requirement of an actual

conflict. He would hold prosecutors to the same level of disinterest demanded of

judges. (Petition at 30-31). Under his terms, even the appearance of conflict would

disqualify a prosecutor. (Petition at 12, 14, 15). This Court has already determined

that this level of disinterest is not required of prosecutors.

In Marshall v. Jericho, this Court held that the rigid neutrality requirements

applicable to the judiciary do not extend to prosecutors. 446 U.S. 238, 248 (1980).

Unlike prosecutors, judges have a duty to “make the final decision and [their]

impartiality serves as the ultimate guarantee of a fair and meaningful proceeding.”

Id. at 250. Thus, as this Court recently stated in Williams v. Pennsylvania, due process

15

demands a judge free of any “potential for bias.” 136 S.Ct. 1899, 1905 (2020).

Prosecutors, on the other hand, “need not be entirely neutral and detached.’”

Marshall v. Jericho, 446 U.S. at 248-49. Although they are public officials who must

serve the public interest, prosecutors are advocates and are “necessarily permitted

to be zealous in their enforcement of the law.” Id. at 248.

Thus, not surprisingly, this Court has expressly recognized that an interested

party’s knowledge and familiarity with a case “may be put to use in assisting a

disinterested prosecutor.” Young, 481 U.S. at 806 n. 17 (emphasis in original);

Person v. Miller, 854 F.2d 656, 663 (4th Cir. 1988), cert. denied, 489 U.S. 1011 (1989)

(noting that “the Young Court was at pains to point out that private counsel’s greater

familiarity with the case might properly ‘be put to use in assisting a disinterested

prosecutor’”). Moreover, this Court suggested the limits of such assistance, stating

simply that the interested party must not “be in control of the prosecution.” Young,

481 U.S. at 806 n. 17; Person, 854 F2d at 663.

Consistent with this Court’s own suggestion, the state court examined

Korioth’s influence over and impact on Williams’ case. After a thorough review of

the record and extrinsic evidence, the court found Wirskye and Shook maintained

control over the investigation and prosecution. Williams presents no authority or

credible facts on which this Court could base a reversal of that ruling.

Williams’ failure to demonstrate an actual conflict makes his case a poor

vehicle for examining the viability of harm analyses in interested prosecutor claims.

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Before deciding whether a conflicted prosecutor claim is amenable to a harm

analysis, there must be some showing of an actual conflict. Without it, the issue of

harm is moot.

In the end, Williams shows nothing more than his own discontent with the

state court’s assessment of the weight and credibility of the evidence pertaining to

his due process claim. Therefore, his petition for certiorari review should be denied.

State Court’s Opinion Is Unpublished

Finally, the fact that the Texas Court of Criminal Appeals issued an

unpublished opinion on this matter further weighs against granting certiorari. Rule

77.3 of the Texas Rules of Appellate Procedure states that “unpublished opinions [of

the Texas Court of Criminal Appeals] have no precedential value and must not be

cited as authority by counsel or by a court.” See Tex. R. App. P. 77.3. Therefore,

certiorari is unnecessary because the opinion cannot be used to affect any future

Texas defendants.

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CONCLUSION

For the foregoing reasons, the State of Texas respectfully requests that the

Court deny Williams’ petition for writ of certiorari.

Respectfully submitted,

/s/ Lisa Braxton Smith

LISA BRAXTON SMITH

Assistant District Attorney Pro Tem

Texas State Bar No. 00787131

Russell A. Steindam Courts Building

2100 Bloomdale Road, Ste. 200

McKinney, Texas 75071

(972) 548-4331

lsmith@co.collin.tx.us

BILL WIRSKYE & TOBY SHOOK

Criminal District Attorneys Pro Tem

Kaufman County, Texas

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