NO.

16,263 January 17, 2010

STATE OF TEXAS IN THE DISTRICT COURT OF
VS. WHARTON COUNTY, TEXAS
SHIRLEY PERSONS PIGOTT 329TH JUDICIAL DISTRICT

DEFENDANT’S MOTION FOR MISTRIAL

Now comes Defendant Shirley Pigott and moves for a mistrial based on Prosecutorial
Misconduct during the trial of this case and would show the Court as follows:

District Attorney Josh McCown, in violation of both state and federal

law, engaged in prosecutorial misconduct. Mr. McCown intentionally
took advantage of Defendant’s disabilities to obtain a conviction. The
district attorney’s conduct is motivated by his stated intent to retaliate
against Defendant to vindicate the state police officers. This conduct
violates the duty of a prosecuting attorney under Texas law AND
violates The Americans with Disability Act, which makes the district
attorney’s conduct illegal under federal law.

AMERICANS WITH DISABILITIES ACT

Congress’ objective in passing this Act is to insure that persons with disabilities receive fair
treatment. The Act includes a federal mandate prohibiting a state district attorney from taking
advantage of a defendant’s disability to obtain a conviction.

TEXAS LAW-DUTY OF A PROSECUTING ATTORNEY

In the case of Rougeau v. State, 783 SW2d 651, 657 (Tx. Cr. App, En Banc, 1987) the court
stated as follows:
“One of the duties of a prosecuting attorney in a criminal case in this State, no matter how
repulsive the accused person may be to him, is to deal justly with that person, and he should
never let zeal get the better of his judgment…..A prosecuting attorney must assume the
position of an impartial representative of justice, not that of counsel for the complainant.”

SPECIFIC FACTS :

Defendant, a 60 year old lady, was pulled over by the state police, on a dark highway, for
going 74mph in a 65mph zone. Because of the circumstances, Defendant told the officers that
she was scared and attempted to go to a public, lighted place before opening her car door. As
a result of Defendant’s action, Wharton County District Attorney, Josh McCown, sought and
 obtained three felony Indictments against Defendant. A conviction of the charges requires
prison, without the option to seek probation.

At the time when she was stopped on the highway and while she was acting as her own
attorney to defend the felony charges, Defendant was suffering from a medical disability
which effected her perception. (See attached Exhibit A, Summary of Dr. Brams Testimony).

Dr. Pigott is a whistleblower who has made public claims of unethical conduct by the Texas
Medical Board and by Dr. Keith Miller, who was a member of the TMB.
While acting as her own attorney, Defendant became paranoid when she discovered that
District Attorney, Josh McCown was coordinating with Dr. Keith Miller in an effort to send
her to prison. (See attached Exhibit B, Summary of Dr. Miller’s attacks on Defendant)

As a result of the paranoia, while acting as her own attorney, Defendant made accusations of
illegal conduct and conspiracies among the state police officers and District Attorney Josh
McCown.

After Defendant’s claims of illegal conduct, the district attorney openly stated and
declared that he intended to retaliate against Defendant because of her claims against
the police officers; that he was going to use Defendant’s claims of illegal conduct in the
guilt stage of the trial to obtain a conviction; that he feels personal vindictiveness toward
Defendant because she insulted the state police officers; that his goal is to vindicate the
state police officers involved because he has a long relationship with the officers; that
they have acted as his witnesses in over 40 trials.

Dr. Pigott’s Effort to Prevent Illegal leveraging of her disability

Dr. Pigott’s disability creates a problem for her if she testifies in her case. Dr. Pigott is unable
to process information when she is in a stressful situation. Once the stress elevates, she is
unable to process information. Her ability to testify shuts down. (Ex. A, Summary of Dr.
Brams Testimony).

Testifying in her criminal case is a stressful situation, especially if on cross-examination the

prosecutor begins asking unclear, confusing questions. In an effort to prevent the district
attorney from taking advantage of Dr. Pigott’s disability during cross-examination,
Defendant’s attorney attempted to create a situation under which Dr. Pigott could function
without being inhibited by her disability. This effort included structuring her testimony by
submitting a written summary, presentation of the testimony of Dr. Brams describing Dr.
Pigott’s disability, followed by Dr. Pigott’s testimony.

Effort to Structure Testimony with Summary

At the beginning of Defendant’s presentation of evidence, Dr. Pigott submitted a two page
written summary of her testimony concerning the event on the highway. (Ex. C). Defendant
proposed, to the district attorney and the Court, that the testimony of Dr. Pigott be limited to
the testimony in the summary, both on direct and cross-examination. Defendant’s attorney
argued that Dr. Pigott’s disability would prevent her from being able to function unless she
knew ahead of time the issues on which she must give testimony. The district attorney argued
against the proposal.

Presentation of Dr. Brams Testimony Describing Dr. Pigott’s Disability

Defendant’s first witness was Dr. Matthew Brams. He testified about Dr. Pigott’s disability.
He specifically informed the district attorney of Dr. Pigott’s disability; he testified that Dr.
Pigott’s PTSD, with her underlying bipolar disorder and her attention deficit hyperactivity
disorder prevented Dr. Pigott from processing information under stress; that stress ( such as
the district attorney’s cross-examination with unclear, confusing questions) would disable Dr.
Pigott. (Ex A).
The district attorney’s cross-examination of Dr. Brams was minimal, with no cross that
challenged Dr. Brams’ conclusions. However, the district attorney did obtain a confirmation
from Dr. Brams that Dr, Pigott’s disability was still present during the trial.

2nd Effort to Structure Testimony with Summary

Before taking the stand to testify and after Dr. Brams testimony, Defendant again tendered
the summary of her testimony, so as to allow her to testify without being inhibited by her
disability. Defendant’s attorney argued that the use of the summary to limit her testimony
would lessen the stress and allow her to function on the stand. Again the district attorney
objected, which resulted in the Court denying Defendant’s request to limit her testimony to
the facts in the summary.

District Attorney Leveraged Dr. Pigott’s Disability to Acquire a Conviction

The district attorney’s cross-examination of Dr. Pigott was crafted for the purpose of taking
advantage of her disability. The cross-examination did not seek to discover any facts that
were not already known. The objective was to create stress in Dr. Pigott; to tense her up; to
“push her buttons.”

The district attorney’s plan worked. Dr. Pigott ceased up, appeared stubborn and
uncooperative. Defendant’s attorney objected regularly that the prosecutor was trying to
confuse Dr. Pigott; that the questions were unclear and confusing. However, the prosecutor
continued to “push her button” successfully. On two occasions Defendant’s attorney found it
 necessary to stand up, in front of the jury, and tell Dr. Pigott to “try to relax, sit up and lean
forward so that you look like you are trying to answer the questions.”
The success of the district attorney’s plan was clear; Dr. Pigott appeared uncooperative,
stubborn and unwilling to try to answer the prosecutor’s questions. (Attached as Ex. D are
examples of the prosecutor questions to Dr. Pigott).

DISTRICT ATTORNEY’S Closing ARGUMENT TO the Jury

the reason Dr. Pigott did not cooperate with the officers on the highway is the same
reason that she refused to cooperate with me during cross-examination---“she thinks
she doesn’t have to follow the same rules that the rest of us have to follow , because
she’s a doctor.”

WHEREFORE, Defendant is entitled to a mistrial, as a matter of law.

Respectfully Submitted,

Jerry S. Payne

cc: Wharton County District Attorney, Josh McCown