Getting Game Day Ready in Waco by TCDLA

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TCDLA

Getting Game Day Ready How to Tackle Any Courtroom Situation

COURSE DIRECTORS Michelle Latray • Stan Schweiger Monique Sparks January 14, 2022 • Waco, Texas

GAME DAY! HOW TO TACKLE ANY COURTROOM SITUATION SEMINAR INFORMATION Date Location Course Director Total CLE Hours

January 14, 2022 Waco, Texas | Hilton Waco| 113 S. University Parks Dr. Waco, TX 76701 Stan Schweiger, Michelle Latray, Adam Kobs, and Monique Sparks 6.0 Ethics: 1.0

Thursday, January 14, 2022 Time

CLE

Daily CLE Hours: 6.0 Ethics: 1.0

Topic

Speaker

7:45 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Stan Schweiger and Michelle Latray

8:30 am

1.0

Kick-Off & Red Zone | Open & Closing Arguments

Robert Gebbia

9:30 am

.75

Scouting | Voir Dire

Kerri Anderson Donica

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Paul Harrell

Lunch Line 1.0

12:30 pm 12:45 pm

Scrimmaging | Pre-Trial Investigations

Lunch Presentation: Keep Your Head in Game | Mental Health

John Fritz

Break .75

1:30 pm

Instant Replay | Technology in the Courtroom

Jeremy Rosenthal

Break

1:45 pm

.75

Special Teams | Experts & Witnesses

Jennifer Zarka

2:30 pm

1.0

Rules of the Game/Penalties | Client Relationships & Communications

Paul Tu

3:30 pm

Ethics

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Game Day! How to Tackle Any Courtroom Situation Table of Contents

-Speaker

Topic January 14, 2022

Robert Gebbia Kerri Anderson Donica Paul Harrell John Fritz Joseph Hoelscher Jennifer Zarka Paul Tu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Scouting | Voir Dire

Speaker:

Kerri Anderson Donica 301 W 3rd Ave Corsicana, TX 75110-4665 (903) 872-7107 phone (903) 872-9281 fax kerri@kerridonicalaw.com www.kerridonicalaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Game Day! How To Tackle Any Courtroom Situation Scouting / Voir Dire Anatomy of Picking A Jury

Heather Barbieri Barbieri Law Firm, P.C. 1400 Gables Court Plano, Texas 75075 972.424.1902 p 972.208.2100 fhbarbieri@barbierilawfirm.com

Kerri Anderson Donica Law Office of Kerri Anderson Donica 301 W. 3rd Avenue Corsicana, TX 75110 903.872.7107 p 903.872.9281 f kerri@kerridonicalaw.com

Anatomy of Jury Selection I.

THE BRAIN: The Psychological Aspect of Jury Selection and Jurors a. Juror Belief Systems – What is going on in their heads? “Belief system” is defined as the totality of an individual's values, attitudes, and opinions. When it comes to the matter of rendering a verdict, nothing is more critical than the juror's belief system. The juror's belief system is the filter through which all evidence and argument must pass. The juror will not deal directly with the evidence and argument when formulating a verdict. The juror will deal with the story he tells himself about the case information and the juror's story is based more on belief than fact. 1 i. Formulating Questions to Reveal Juror Beliefs 1. Develop Theme: group or categorize evidence into themes 2. One primary theme, no more than 3 sub-themes a. Research in the area of cognitive psychology has revealed that the average individual can keep three things in mind at one point in time. In other words, the average individual can keep three things in working memory. 3. The questions you create should be designed to reveal juror beliefs about your evidence and themes (get them talking). ii. “Rational Approach” to Uncovering Juror Beliefs In this approach, the trial attorney can use reason and logic to deduce juror opinions that are relevant to the case. 1. Examples: a. Strong Parenting Instinct – Individuals with a strong parenting instinct might be overprotective towards children and thus inclined to begin hearing evidence in a child sexual abuse case with a guilty verdict already in mind. b. Law and Order – Individuals who identify with law enforcement and the courts would from the beginning of the trial be favorable to the prosecution. c. Sexually Conservative – In our culture, sex is supposed to be a private thing, so everybody will be a little shy about

Ball, David, Theater Tips and Strategies for Jury Trials 3rd ed., Notre Dame, Indiana: National Institure of Trial Advocacy (2003); Ferrara, Matthew, The Psychology of Voir Dire, http://www.thejuryexpert.com/2010/11/thepsychology-of-voir-dire/.

sexual matters but the sexually conservative person is extraordinarily shy and might punish the defendant with a guilty verdict for bringing sex out of the bedroom and into the courtroom. 2. Goal: To uncover belief systems that favor the prosecution

iii. “Empirical Approach” To Uncovering Juror Beliefs In the empirical approach, you identify relevant juror beliefs by use of the existing scientific literature, or by the use of focus groups. 1. Examples: a. Authoritarianism-- Authoritarianism is defined as a desire for order, well defined rules, and reliance upon authority when making decisions. Authoritarians have a strong belief in the legitimacy of conventional authority. The research shows that authoritarian individuals tend to convict and give harsher punishment than people who are low on authoritarianism (Narby, Cutler & Moran, 1993). 2 To really appreciate the power of authoritarianism, consider the results of a thirty year old study that showed that authoritarian individuals recall prosecution evidence more than defense evidence (Garcia & Griffitt, 1978). The following are examples of beliefs held by authoritarian individuals: i. Obedience and respect for authority are the most important virtues children should learn. ii. An insult to honor should always be punished. iii. There is nothing lower than a person who does not feel great love, gratitude and respect for his parents. b. Locus of Control -- Locus of control means location of control. In the locus of control research, there are two locations for control: internal and external. Individuals with external locus of control believe that their actions matter little and what happens in their life is largely the result of external factors, like fate, luck, or serendipity. Individuals with internal locus of control believe that their personal qualities, such as intelligence, perseverance, and so on, determine what happens in their life. i. People's misfortunes are the result of mistakes they make. ii. Capable people who fail to become leaders have not taken advantage of their opportunities.

See id.

iii. When I make plans I am almost always certain I can make them work. c. Belief in a Just World -- If you believe that people get what they deserve in life, you have a belief in a just world, i.e., good things happen to good people and bad things happen to bad people. The research regarding Belief in a Just World (BJW) is mixed. Some research has shown persons with a strong BJW are more likely to convict but these same individuals might be inclined to blame a rape victim or be less punitive towards a higher status defendant (Lieberman & Sales, 2007). The following are some beliefs held by individuals with strong just world beliefs: i. I feel the world treats me fairly. ii. I believe that I get what I deserve. iii. I feel that I earn the rewards and punishments I get. 3 b. Non-verbal Gestures (psycho-motor part of communication)– What their unspoken cues are telling us. 4 i. Positive Non-Verbal Gestures 1. Head-nodding 2. Eye contact 3. Standing in comfortable proximity 4. Not talking over 5. Smiling when appropriate 6. Maintain good posture 7. Using effective hand movements 8. Being in the present 9. Staying alert 10. Mirroring jurors ii. Negative Non-Verbal Gestures 1. Looking at watch 2. Rejecting eye contact 3. Tapping pencil, clicking pen, fidgeting with an object 4. Displays of arrogance or superiority 5. Yawning or sighing 3 4

See id. See Addendum A. It is an article that theorizes on reading the minds of listeners, by focusing on their actions.

6. Crossing Arms 7. Reading a paper, book, etc. 8. Shaking head in disagreement 9. Furrowing brow 10. Rolling eyes

II.

THE HEART: The Artistic Approach That “Keeps the Flow” in Jury Selection a. Tactics that work i. Looping ii. Open-ended questions (except cause challenge--need yes/no ) iii. Personalizing – calling jurors by name iv. Visualize – true stories or antecdotes v. Feelings – how did that make you feel? vi. Stop talking! Allow jurors to fully answer before speaking vii. Escaping from the nightmare juror viii. Dealing with bad facts ix. Primacy & Recency – memorize first and last things you say x. Finding your friends, enemies and, worst of all your frenemies!

III.

THE SKELETON: The Law That Provides the Structure for Jury Selection a. Jury Size (TCCP 33.01) i. District Court = twelve jurors i. County Court & Inferior Courts = 6 jurors ii. District Court/misdemeanor case = 6 jurors b. Alternate Jurors (TCCP 33.011) i. Number of Alternate Jurors 1. District Court = no more than 4 2. County Court = no more than 2 ii. Role of Alternate Juror 1. Shall serve in order of which they were called; if: a. Prior to verdict on guilt/innocence (or punishment in a slow plea); b. Juror becomes or found to be unable or disqualified to perform their duties; or are found by the court on agreement of the parties to have good cause for not performing their duties. iii. Alternate jurors shall be drawn and selected in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, security, and privileges as regular jurors. 5

iv. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment. c. Failure to Register to Vote (TCCP 33.02) i. Failure to register to vote shall not disqualify any person from jury service. d. Presence of Defendant (TCCP 33.03-04) i. Felony Defendants: 1. Defendant must be personally present at the trial 2. Exception: Defendant voluntarily absents himself after the jury has been selected. ii. Misdemeanor Defendants: 1. Defendant must be personally present at trial; 2. If the punishment or any part thereof is imprisonment in jail; 3. Exception: Defendant voluntarily absents himself after the jury has been selected. iii. Presumption 1. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. iv. Presence Not Required v. Presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case. vi. In other misdemeanor cases, the defendant may, by consent of the State's attorney, appear by counsel, and the trial may proceed without his personal presence. e. Formation of the Jury (TCCP 35.01) i. When a case is called for trial and the parties have announced ready for trial, the names of those summoned as jurors in the case shall be called. ii. Those not present may be fined not less than $100 nor more than $500. iii. An attachment may issue on request of either party for any absent summoned juror, to have him brought forthwith before the court. iv. A person who is summoned but not present, may upon an appearance, before the jury is qualified, be tried as to his qualifications and impaneled as a juror unless challenged, but no cause shall be unreasonably delayed on account of his absence. f. Jurors Sworn (TCCP 35.02) i. To those present the court shall cause to be administered this oath: 1. "You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the 6

court, or under its directions, touching your service and qualifications as a juror, so help you God." g. Excuses (TCCP 35.05) i. Court Shall Determine: 1. Excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror's service to a date specified by the court, as appropriate. ii. Court’s Designee Shall Determine (Non-Capital Cases) 1. If a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court's designee may hear and determine an excuse offered for not serving as a juror, including any claim of an exemption or a lack of qualification. The court's designee may discharge the prospective juror or postpone the prospective juror's service to a date specified by the court's designee, as appropriate, if: 2. the court's designee considers the excuse sufficient; and 3. the juror submits to the court's designee a statement of the ground of the exemption or lack of qualification or other excuse. iii. Religious Beliefs 1. A court or a court's designee may discharge a juror or postpone the juror's service on the basis of the juror's observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code. h. Exemptions (TCCP 35.04) i. Appearance Not Mandatory ii. Any person summoned as a juror who is exempt by law from jury service may establish his exemption without appearing in person by filing a signed statement of the ground of his exemption with the clerk of the court at any time before the date upon which he is summoned to appear. i. Consent (TCCP 35.05) i. One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled. j. Challenge to Array of Jury (TCCP 35.07-08) i. The court shall hear and determine a challenge to the array before interrogating those summoned as to their qualifications.

ii. Each party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal. iii. All such challenges must be in writing setting forth distinctly the grounds of such challenge. iv. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. v. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained. vi. Challenge Sustained vii. The array of jurors summoned shall be discharged if the challenge is sustained; viii. The court shall order other jurors to be summoned in their absence; and ix. The court shall direct that the officer who summoned those so discharged, and on account of whose misconduct the challenge has been sustained shall not summon any other jurors in the case. x. List of New Venire xi. Defendant entitled to service of a copy of the list of names of those summoned by order of the court. k. Preparation of List (TCCP 35.11) i. The trial judge, on the demand of the defendant or his attorney, or of the State's counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. ii. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the State's counsel and to the defendant or his attorney. l. Mode of Testing i. In testing the qualification of a prospective juror after the juror has been sworn, the juror shall be asked by the court, or under its direction: 1. Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state? 2. Have you ever been convicted of theft or any felony? 3. Are you under indictment or legal accusation for theft or any felony? 5 m. Peremptory Challenges (TCCP 35.14-15)

In testing the qualifications of a prospective juror, with respect to whether the juror has been the subject of an order of nondisclosure or has a criminal history that includes information subject to that order, the juror may state only that the matter in question has been sealed 5

i. No reason necessary: A peremptory challenge is made to a juror without assigning any reason ii. Number of Challenges: 1. Capital/death penalty, one defendant = 15 both sides 2. Capital/death penalty, two or more defendants are tried together: a. State =8 for each defendant b. Defendant = 8 3. Non-capital felony, one defendant = 10 both sides 4. Non-capital felony, two or more defendants tried together: a. State =6 for each defendant b. Defendant = 6 5. Misdemeanor in District Court = 5 both sides 6. Misdemeanor in District Court, two or more defendants tried together: a. State = 3 for each defendant b. Defendant = 3 7. Alternate Jurors a. If one or two alternates to be impaneled = 1 b. If three or four alternate to be impaneled = 2 n. Challenges for Cause (TCCP 35.16) i. A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. ii. A challenge for cause may be made by either the state or the defense for any one of the following reasons: 1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification; 2. That the juror has been convicted of misdemeanor theft or a felony; 3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony; 4. That the juror is insane; 5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case; 6. That the juror is a witness in the case; 7. That the juror served on the grand jury which found the indictment; 8. That the juror served on a petit jury in a former trial of the same case; 9. That the juror has a bias or prejudice in favor of or against the defendant;

10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. 11. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. 12. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. 13. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, 14. If it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. 15. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged; 16. That the juror cannot read or write. iii. State Cause Challenges 1. A challenge for cause may be made by the State for any of the following reasons: a. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty; b. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and c. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. iv. Defense Cause Challenges 1. A challenge for cause may be made by the defense for any of the following reasons: a. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and b. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for

which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. o. Voir Dire Examination (TCCP 35.17) i. When the court in its discretion so directs, except as provided in Section 2, the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel. ii. In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court. p. Absolute Disqualification (TCCP 35.19) i. No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent. q. Oath to Jury (TCCP 35.22) i. When the jury has been selected, the following oath shall be administered them by the court or under its direction: 1. "You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God". r. Jurors May Separate (TCCP 35.23) i. The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury. ii. The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged. iii. Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court. iv. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. v. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict.

vi. In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated. s. Batson Challenges-Challenges Based on Race (TCCP 35.261) i. After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. ii. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. iii. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. iv. The burden of persuasion remains with the defendant to establish purposeful discrimination. v. If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case. t. Personal Juror Information (TCCP 35.29) i. Information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel except on application by a party in the trial or on application by a bona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror. ii. On a showing of good cause, the court shall permit disclosure of the information sought.

IV.

THE MUSCLES: The Mechanics of Various Tools for Jury Selection a. Aids to assist in jury selection i. Prepared questions ii. Power Points, Charts, Overhead Projectors iii. Juror questionnaires 12

iv. Seating charts 1. Use of colored markers or pens 2. Use of codes and acronyms v. Use of jury charge itself vi. Numbered cards vii. Social media Addendum A 6 How to read faces • Brushing hair off your face This movement, a combination of nerves and flirtation, helps call attention to and frame your feminine assets (think face and neck). No wonder it's a staple of a promising date. • Smiling Botox be damned! The only real smile, says Anita Barbee, a professor of social work at the University of Louisville, in Kentucky, is one in which eye muscles are engaged. People who grin for more than five seconds and only with their lips can be faking it. Frequent smiling in the workplace can make a person seem less serious. • Blinking The normal blink rate is six to eight times a minute. But under stress, you'll blink more often and somewhat more dramatically. Want to know who's freaking out and who's as cool as a cucumber at the next big meeting? The eyes have it. • Nibbling your lips If you bite, suck on, or lick your lips when under pressure or in an awkward situation, you're attempting to comfort or soothe yourself, says psychologist Carol Kinsey Goman, the author of "The Nonverbal Advantage" ($20, amazon.com). • Scratching your nose Don't get caught in a lie. "When a person fibs, it's often accompanied by an adrenaline rush," says psychologist Michael Cunningham, a professor of communication at the University of Louisville. This release causes capillaries to expand, making the nose itch. Another tall-tale tell: a sustained glance. A liar often overcompensates for being perceived as shifty by focusing a bit too intently on the person he is fibbing to. • Sending darting glances This catch-your-eye game, usually played in guy-girl situations, tends to mirror your scattered 6

See,http://www.cnn.com/2011/LIVING/01/06/rs.body.language/index.html

thoughts. Does he like me? Do I like him? Do I want him to come over here? Also, unlike a direct gaze, the back-and-forth variety is a protective measure: If he doesn't approach you, you won't feel rejected. • Nodding your head If you nod in clusters of three, the speaker will sense your interest, and this can lengthen her response threefold, says Goman. Word to the wise: Nod only once when trying to escape Chatty Cathy. • Closing your eyes By rubbing, covering, or closing your eyes for longer than a blink, you're trying to keep out certain auditory or visual cues. It's a survival mechanism to prevent the brain from processing anything undesirable or threatening. • Lowering your gaze This meek gesture is an unconscious bid for public support -- a favorite tactic of small children, not to mention the late Princess Diana. It often elicits a parental response. If someone does it to you, she may be searching for your empathy. Be gentle. • Pursing your lips Narrowing the red margins of your lips is a clear sign of anger, says Paul Ekman, professor emeritus at the University of California, San Francisco. Why? When a person is not truly mad, she typically can't feign this gesture, even if she tries. • Tilting your head Cock your head to the side when hearing a friend's sob story. This movement indicates that you're interested and listening. On a more literal level, you're revealing and angling your ear to her, physically showing that you want to hear every detail. • Raising or furrowing your eyebrows "Raised eyebrows, one or both, is a true expression of piqued curiosity and interest, while lowered eyebrows can indicate negative emotions, such as confusion and fear," says Laura Guerrero, a professor of communication at the Arizona State University Hugh Downs School of Human Communication, in Tempe. If you're not interested in a good or bad way, your face will remain still and unanimated. • Looking up or to the side Want a little glimpse into the way someone's memory works? Notice where the person moves her eyes. When recalling something that was seen, a person will angle her eyes skyward, as if trying to picture it. When remembering something heard, she will look toward one of her ears, as if listening for it. Especially emotional experiences tend to be relived through introspective downward glances. How to read bodies 14

• Standing with legs together This conservative stance denotes deference, says Goman. • Angling yourself Do you align yourself with the head honcho at work? Most people position their bodies or feet toward the person who has captured their focus. Coming to attention and squaring your chest at the sight of your boss is a sign of respect. Another note about proper alignment: If someone approaches you and a friend in the middle of a conversation and you want to give the newcomer a nonverbal invitation to join in, angle your bodies outward by 45 degrees. This subtle sign of inclusion shows the person that she is welcome. • Standing with legs apart This position, feet and legs shoulder-width apart, signals dominance and determination, says Goman. When asserting your side of an argument or discussion, stand your ground -- literally. For an extra boost, place your hands on your hips. This is a traditional position of power. • Leaning No surprise here: You lean toward people you like and pull away from those you don't. On a date? Take note of your companion's direction -- and yours. Subtly mirroring movements builds trust. • Shifting your weight from side to side or front to back "The way you move your body reflects your attitude," says Goman. Constantly transferring your weight from one foot to the other or rocking forward and backward is a comforting movement that indicates you are anxious or upset. Basically, this is a physical representation of what is going on in your head: You are betwixt and between many unsettling thoughts and can't stop moving from one to the other. • Massaging your forehead or earlobes These soothing actions counter feelings of uneasiness or vulnerability -- for example, when you are seated in the front row of a lecture hall and hope not to be called on. The same goes for hugging your sides or rubbing your legs when you're sitting. Stroking the nerve endings in some of these body parts helps lower blood pressure and heart rate. • Crossing your arms Don't be too quick to leap to conclusions: This pose doesn't always mean anger, but when coupled with crossed legs, it is a defensive position. Take note of the surroundings. More often than not, this stance means a person is cold. Also, many people simply find it comfortable, says Cunningham. • Walking The way you tread speaks volumes about how others see you. Fast strutters come across as productive and competent, looking as if they have somewhere important to be. Those with a "bounce in their step" are perceived as having upbeat personalities. For a purposeful stride, walk from heel to toe. (Interestingly, most men land on their heels; most women, mid-arch.) 15

• Sitting When in doubt, spread out. Taking up space, such as by fanning out your papers in the boardroom instead of stacking them in a small pile, screams importance. Likewise, sitting with your legs apart assures others that you are large and in charge. How to read hands • Opening up your hands By spreading your hands as if serving someone a treat off a tray, you are indicating that you are open to new ideas being offered. Facing your palms down or clenching your fists shows you have a strong position -- one that may not be so flexible. • Flailing your arms You're not out of control. Research shows that those who gesture when they speak seem energetic, agreeable, and warm, while those who gesticulate less are seen as logical and analytic. Keep in mind that moderation is key; overly animated gestures that border on frantic make you appear unbelievable and less powerful. If you fear you may be too animated, perhaps in a job interview, hold on to something when you talk. • Hiding your hands Stashing your hands in your lap, stuffing them in your pockets, and holding them behind your back are movements of deceit -- you're hiding something. "A person may be telling you one thing, but these cues indicate you're not getting the whole story," says Barbee. • Picking at your nails Messing with cuticles is a sign of low confidence and timidity. Try steepling your fingers (hands folded together with index fingers extended) so you can't pick and you instead appear selfassured. How to read feet • Pointing toes in Even if you're sitting up straight with your shoulders aligned and your head up -- all signs of an open body position -- your feet may be betraying you. If they're cocked inward, big toe to big toe, this indicates that you're closing yourself off because you feel awkward or insecure. • Fidgeting Ever notice that you become more physically active -- you tap your heels, slide in and out of your shoes, bop your foot up and down while crossing your legs -- the more uncomfortable you feel? This is because these kinds of moves relieve tension. Fidgeting may also mean that you want out of a situation and your body is getting ready to take flight. The bottom line? At least in professional settings, cross your ankles to calm those fidgety feet.

• Crossing your legs Pay attention to the direction in which you cross your legs. In a seated conversation, people tend to point the toes of the top leg toward the person who they feel is the most approachable. The kicker? Lifting your toes means your feelings toward said person are extra-positive. • Pointing toes toward the door When you're having a conversation with someone but her feet are angled toward the door, she may be unconsciously saying that she's ready to cut the talk short and move on.

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Kick-Off & Red Zone | Open & Closing Arguments

Speaker:

Robert Gebbia 3030 Nacogdoches Ste 222g San Antonio, TX 78217 (210) 222-9132 phone (888) 519-8229 fax bobby@hgclaw.com www.hgclaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Running Head: Opening and Closing Arguments

Kick Off and Red Zone: Opening and Closing Arguments Robert F. Gebbia Texas Criminal Defense Lawyers Association Defense: We Make Champions Laredo, Texas November 12th, 2021

Running Head: Opening and Closing Arguments

Opening Statements After months of pre-trial preparation, plea bargain negotiations, investigation and selecting a jury you are finally ready to make your opening statement. Wait, what do I say? It’s ok, we all get that feeling. Opening statements are one of the most difficult parts and one of the most overlooked stages of the trial. The opening statement is your opportunity to humanize your client, introduce what you expect the evidence will show, and re-establish the theme that began in your voir dire. Gaining the Allegiance of the Jury The primary objective of the opening statement is to gain the allegiance of the jury. There are many studies, old wives’ tales, and anecdotal evidence that suggests the jury is well on their way to making up their minds about your clients guilt or innocence. So this is the first time you really get to gain their allegiance. You want to get the jury on your side in opening. To do so you must do a several things. First, is to be sure to re-introduce your theme. I say re-introduce because you should have already established your theme in voir dire. The theme of your case is the sound bite of your case: “self-defense”, “#metoo”, “black lives matter”. You want to re-establish that and integrate it into your opening. In doing so, it is important to tell your client’s story. Tell it in a compelling and coherent way. Use simple language. This isn’t the time to show everyone in the jury box how smart you are. Save the academic language for happy hour with your colleagues. This is the time to speak to the jury as equals and to get them to vote for your guy by telling a compelling story. Part of telling that story might be acknowledging some of the not-so-great parts of your case. That’s a good way to establish good rapport and to come across as your authentic self. In doing so, you humanize yourself and you humanize your client.

Running Head: Opening and Closing Arguments

In the sequence of events the State does their opening statement first. In the State’s opening be sure you are taking good notes of all the facts the prosecutor is telling the jury that the evidence will show. Especially that facts which will be hotly contested. Also, make note of things that the prosecutor might say that come across as condescending. The prosecutor may also try to make light of some things or try to lessen his burden. They almost always do. Be prepared to make a note of this and decide if you want to use it in your open or whether you want to save it for your close. If the State flies off the rails and you must object, then you must object. Be prepared to preserve your error by making your objection timely and specific, asking for an instruction and a mistrial. You want to be careful here because the jury will not like it. Remember, you are trying to gain their allegiance. If you come across as an obstinate jack ass you may alienate them. You want the jury to trust you. In contrast, the last thing you want to do is to alienate the jury or to cause them to dislike you and or your client. The State concludes their opening, and it is your turn to make yours. Deep breaths. You got this. Wait, I can reserve? Ok, yes you can reserve your opening statement but it rarely, if ever makes sense to do so. I am going to say that you should never reserve your opening statement. There may be some big reveal or strategic opportunity that indicates you should. I am more inclined to tell you that you should not. Stand up and get going with your opening. “May it please the court….”. Be yourself. Make good eye contact. Project your voice. Stand in front of the jury. Move around naturally. Don’t pace. Use your hands to emphasize points but don’t over do it. Don’t put your hands in your pockets. Use strong active language and tell your story in a persuasive way. Don’t overuse “the evidence will show”. You only need to say that once or twice at most. Also, do not start with “The opening statement is a road map” or some other useless platitude. Start with your theme! Humanize your client’s case. Make it something that anyone

Running Head: Opening and Closing Arguments

and everyone can relate to. Don’t come across like you are wasting time are getting warmed up to make your statement. Make it. Tell your story in a real authentic way. Walk over to your client and put your hand on their shoulder. Re-introduce yourself and your client. Provide some biographical information that you expect will come out in trial and tie it into your theme. That’s a great way to establish human contact with the jury. It’s a tried-and-true method of getting them on your side. Telling Your Story Tell your story in a relatable and concise way. Be brief and tell the complete story even if your facts are bad. If you can’t rightfully dispute the prosecutions facts—don’t—sometimes we’re left little more to argue than the burden of proof to argue to the jury. If that’s the case use your opening statement to condition jury for those areas where reasonable doubt can arise. Potential areas include: credibility of the witness, eyewitness identification, or a narrow legal issue. Every case is different and there are different opportunities to tell the story. Chronologically is one way and it can work very effectively. You don’t have to be married to chronological order if it does not work for you but what you don’t want to do is confuse the jury or put them to sleep. This is not the time to dive into the weeds of your case. This should all be very high level, concise and engaging. You want them engaged. Keep it interesting and focus on the human elements of your story. Highlight the significant details but do not burrow down into the minutia. Don’t be repetitive and uninteresting. Use active language that brings the theme of your case into the forefront of your opening statement. If you have some weaknesses you want to point out in your case, now is the time. For example, “You are going to see some really disturbing pictures. I am sorry. It is not for the faint of heart. But the nature of these photos does not in any

Running Head: Opening and Closing Arguments

prove that Mr. Client did anything. In fact, at the time of the alleged offense he was on the beach in Tahiti”. Opening statements are not really the time for over-the-top drama. Save that for closing. If there is anything to adhere to in opening it is this: Do not overcommit to something that might change during trial. Don’t over promise what witnesses may or may not say. If you over committed to something that does not come to fruition you may lose credibility with the jury. If you lose credibility, you lose their allegiance and you may lose the case. Instead of overcommitting, be clear and concise. Avoid lots of detail. Make good eye contact and emphasize your points. Tie in your them and finish up. Going on for too long or getting into details can do more harm than good. Plan your how to end your open strong and finish it up. Closing Arguments You have worked and prepared your case for months (hopefully). The jury has been picked and sworn. You made a clear and concise opening statement. The evidence presented. The witnesses crossed. Your objections have been made, over-ruled and (hopefully) preserved. The judge gave you that jury charge you really hoped you might get. Now is the time to seal the deal. Now is the time to clearly and concisely summarize the evidence and convince this jury that your client is not guilty. Be a Tough Act to Follow It always makes me feel better knowing that I am not going first. All of this is an act and we have a role to play. Know your role. Take it easy. Deep breaths. First thing is first, the judge is about to bore the jury out of their minds by reading them the jury charge. Sit up straight and pay attention. Follow along on the jury charge and focus on your breathing. Once finished the State is going to put up their lesser experienced prosecutor. This is basically practice time for the

Running Head: Opening and Closing Arguments

younger attorney. That prosecutor is going to give their boiler-plate spiel about how the jury charge is their “map” and reiterate exactly what the judge just bored them to death with. Pay close attention to what that attorney is saying. You may need to slip a few things in to your presentation based on whatever dumb things they say, and they invariably say something dumb. You can expect the lesser prosecutor to give about a ten-minute presentation or so. It’s usually not the substance of the case but an explanation of the law from the perspective of the State. When it’s your turn you get to knock it out of the park! Be prepared, be clear, be precise in your thoughts, your words, and actions. Now you can control the room. All the energy that the judge and the lesser prosecutor just sucked out of the room you get to bring back. Have a powerful visual presentation that aids you in your argument and really knock it home. Make it so difficult for that greater prosecutor to follow you that they must change their game plan. Be strong, be smart, be clever, and impassioned. Don’t be afraid to sprinkle a little humor in there as well. A little comic relief can go a long way if you are really hitting on all the high notes. Connect with that jury. Connect with them in a way you started to in voir dire. Remind them of who you are. When you have it going and have it going right, when you sit down you made it real tough for the other guy to stand up. You have him reeling. Everything they thought they were going to say just flew out the window. They are mad. Hot white mad. When they start referencing you, yelling about you, then you know you got the better of them. Be a tough act to follow. Tie Your Close Back to Your Voir Dire Your closing argument is the time where you get to hammer home all those important points you made back at voir dire. During jury selection you had the opportunity to discuss, brainstorm and educate the jury on the anticipated issues of your client’s case. Closing arguments start in voir dire. Voir dire is where you can plant the seeds of all the arguments you get to make

Running Head: Opening and Closing Arguments

at close. Have the foresight to see your case all the way through from start to finish. If you do so, you can present a nice tight package at closing. You can argue things like “We discussed this very issue in jury selection! Everyone agreed with me then.” You may have a few soundbites that you dropped on the venire that you can now bring back and resonate with your jury. Think of your case not in separated acts but rather as one consistent story or song. Circling back to the issues or stories you told in jury selection establishes a connection from there to now. It establishes you as sincere and earnest with them. Your thematic consistency puts them at ease and allows them to open their hearts and their minds to the points you are trying to make. Practical Tips for Developing a Strong Closing Argument There is no substitute for preparation. Still, you can prepare day in and day out and still whiff when the big moment comes. Let’s talk some practical tips. For me there is not better substitution than brainstorming with someone else. The more the better but, don’t let them dominate your thought process. You know your case, they likely do not. Those with confidence issues or who are prone to emotionality over criticism may have a hard time with this. If that is you then maybe you should try to brainstorm with a trusted friend, colleague or spouse. Not a person in the world who can call bullshit on me like my spouse. You do not want to be a snakeoil salesman. You want to look and sound authentic. If you start selling too hard the jury will know you are full of it. You want to have conviction in all that you say in your close. That’s easier to write than it is to do. So have a sounding board that you can drop some ideas on. Brainstorm the old-fashioned way. Get a butcher board out and start writing out your themes and your ideas. What is it that you are trying to say? Good! Say it! Don’t beat around the bush. Take a book out of Dr. Seuss. Say what you mean and mean what you say. Establish those good themes and run with them. Tie all the facts and evidence back to your theme.

Running Head: Opening and Closing Arguments

Play it cool during cross examination. There is always the urge to pounce on cross examination when the witness says something flippant. Play it cool. Make a little note for yourself and hammer it in your close. You don’t have to turn it into a big thing on cross because it only comes across as argumentative. Cross isn’t the time for argument, but closing is! If you try to hammer the flippant attitude or testimony too hard in cross you give the State the opportunity to cure it. They can re-direct and softball something like, “You didn’t really mean to say…”. Save it for close. That’s when you get to hammer them with it. They won’t even see it coming because you didn’t make a big deal out of in cross. Now, they have to re-write their closing script to fill in gaps that they didn’t anticipate having to fill. Once you get them off script you have created an opportunity to beat them in closing. Keep a closing log. Take a singular blank piece of paper and write “Closing” at the top of it. Keep a log of all the things the witnesses and the prosecutors say that you can turn around and use in closing. You may or may not use all of it but it’s nice to have because it’s easy to forget little stuff that gets said during a trial. The beauty of all that little stuff is you can make a mountain out of it in close. Keep yourself a little closing log. This is particularly useful because when you get to the point where you are preparing your close, you already have a nice little brainstorming sheet to work off of. Use your closing log to integrate the facts and the evidence into the themes that you have set up in voir dire, opening, and cross. Remember, none of these stages of the trial should stand on their own in a vacuum. Run your theme through the whole trial and then hammer it home in close. By keeping a little closing notebook, you are able to go back and relive the trial in your mind as you set the stage for your closing argument. Project yourself delivering a strong closing argument. Sure, this deviates a little bit from “practical tips” but when you learn how to do it you see how invaluable it is. High achievers

Running Head: Opening and Closing Arguments

project themselves into performance all the time. Actors do the same. Don’t be afraid of a little bit of fantasy in your life. Project yourself delivering your lines. Don’t just lie in bed thinking about what you should say. That should already be done. If you are laying in bed thinking about what you should say it’s time to get up and go back to your closing log. It’s time to get up and take another look at your brainstorming session notes. When you are laying in bed waiting for the big moment it is time to project yourself in your own mind into the morning, in court, knocking this closing statement out of the park. It’s ok to be a kid again. We were used to it all the time on the playground. Bottom of the ninth, tie score, you are coming to the plate and you are going to knock one into the right center field bleachers. Point your bat out there. Fastball is coming, and you know it. See yourself delivering in the big moment. See yourself dropping the lines that you discussed with your trial team. See yourself nailing down the theme that you have been setting up since jury selection. Go through all of it in your mind. If you are able to do that; if you are able to project yourself to another place and time like that, you will absolutely hammer your closing argument. Practical Tips for Delivering Your Closing Argument Now is the time. The State’s lesser prosecutor just went over the law. The judge looks over to Defense Counsel table and you are ready to deliver. First thing js first: Be Humble! I know it’s not easy. You have a lot to say and you are ready to say it. Slow down. Remember, this is all an act and you have a role to play. I like to greet the jury with a pleasantry and a kind remark. “Good morning, good citizens of Bexar County. Thank you for your punctuality and your attentiveness throughout the presentation of this case.” I like to re-introduce myself to the jury. “My name is Robert Gebbia and it has been my honor to be here with you this week.” I like to reintroduce my client. “This is John Doe and it has been my honor to represent him in this very

Running Head: Opening and Closing Arguments

important case.” Sometimes I will even go so far as to shake his hand and thank him. I pat him on the back and I remind the jury that “as he sits here he is an innocent man.” Then I take it a step further and I say something like, “and for all the reasons I am about to tell you, you will find that he is not guilty of this offense.” I like to pause then. Collect my thoughts. I then will thank the Judge and do a little bow. I tell them what an honor it has been to practice before them. Then I give a nod to the State and I thank them for their service to the community. After all, it’s all a big show and I am a big showman. Then I begin my argument. That little dance as described above is useful for me. It helps to get my blood flowing. It helps to energize and control the room. That is ultimately what you want to do. You want to have complete and total control of that room while you are delivering your close. You want to hit all of your points with clarity and precision. Be sharp. Know what you are saying. Be completely authentic with the words that come from your mouth. Tell your story with conviction. Undermine all the bad facts with good ones. Utilize your theme. Speak with inflection when you are making your points. Use your voice as a tool of influence. Repeat your theme with each fact or piece of evidence that supports your case. Remind the jury of their duty. Remind the jury of their oath. Remind the jury of the promises they made to carefully consider all of the evidence before rendering a verdict. Remind them that if the jury charge is a map then the presumption of innocence is the compass. Make those important human connections. Move around the room. Don’t be afraid to act little pieces of it out. I love to play different characters and different voices. It gives the jury a real picture in their minds. It’s also great theatre. Do your best to get the energy in the room to a palpable level. Then back off a bit. Take a break in your mind. Walk back to counsel table. Have some water there for you. Take a quick swig. But you’re not only taking a quick break. Next to

Running Head: Opening and Closing Arguments

your water have a very clearly written two or three point bullet point list of your main themes. A very cleverly placed notepad with three very neatly, very clearly written points you absolutely want to make. Now you have had a break, get back in there and make those three points! Hammer them home. When you are done, when you have said all that you wanted to say, you finish. Close your close. Challenge the jury to follow their oath. Summon them to do the right thing. “Mr. Doe is not guilty. Not guilty. Not guilty.” I like to say it three times for effect and resonance. Conclusion In conclusion, opening statements are one of the most difficult parts and one of the most overlooked stages of the trial. This can cause advocates some anxiety. Follow those basic premises and you can score some points with the jury. Remember to humanize your client, introduce what you expect the evidence will show, and re-establish the theme that began in your voir dire. Then, in your close, crush the State’s argument and win the case with a strong passionate argument for your client. Now go give the State hell!

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Scrimmaging | Pre-Trial Investigations

Speaker:

Paul Harrell

703B E Main St Gatesville, TX 76528-1431 (254) 404-3323 phone (254) 404-2183 fax paul.s.harrell@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Gameday Ready

November 12, 2021 Laredo, Texas

SCRIMMAGING/PRACTICE: Pretrial Investigations

Speaker:

Paul S. Harrell

Law Office of Paul S. Harrell 703B E. Main Street Gatesville, Texas 76528 (254) 404-3323 www.paulsharrelllaw.com paul.s.harrell@gmail.com

Game Day Ready Pre Trial Investigations

SCRIMMAGING TO GET READY By Paul S. Harrell, Adapted from Clay Steadman and Dustin Nimz INTRODUCTION

Undoubtedly, you and your office have a system for collecting and using information about a case. This is neither an exhaustive treatise on the topic nor a definitive guide. I have found that organizing the gathering of information before a case can be beneficial later. Few groups teach readiness better than TCDLA and fewer still love their acronyms as much. I present to you the USMC, arguably near the best at readiness training and acronyms. One system they use is B.A.M.C.I.S., a six-step troop readiness program, for our purposes: Begin the plan Arrange for reconnaissance Make reconnaissance Complete the plan Issue Orders Supervise The idea here (obviously, a short explanation) is how to get troops from point 1 to point 2 efficiently while maintaining the goal of accomplishing the mission. Certainly, this discussion is about pretrial investigation, or, more importantly, how to manage pretrial investigations, but I am not about to argue with 245 years of training. In the next few pages, we aren’t going to be able to drill in all these principles so please think about them only as a starting point to getting all of the information to help our clients. BEGIN THE PLAN At the beginning of every case, it can seem daunting to wrap your head around all the things you will have to do/collect and when you will have to do/collect. In brief, you know you are going to have to investigate the following: 2

Game Day Ready Pre Trial Investigations

a. Client’s statement b. Witness statements c. Affidavits of Non-Prosecution (which is a type of statement) d. Offense reports e. I.R.S. records f. Property records g. Court records (probation/judgments) h. Attorney General records and information i. Texas Department of Criminal Justice Institutional Division j. County Jail records k. Police Department records of complaints l. Video Cam surveillance records m. Crime Lab records n. Medical Examiner (autopsy) reports o. Crime Stoppers records p. Social Media in all forms q. Clerk’s records r. Personnel records (Employment) s. Medical records t. TCOLE reports u. Mental Health/MHMR v. Education/School records

Game Day Ready Pre Trial Investigations

w. Military Records (DD-214 is a good first steps but many troops also have counseling statements and awards/certificates that aren’t blanketly explained in the DD-214) x. Counseling and Therapy records As you start the plan, the client is going to be driving the bus. He/she will have their own ideas, likely, about what information you need to know but you still need them to get you to the point of arrest and why they are in the jailhouse or on bond. It is not a bad idea to start engaging some of the other parties as well. Also, part of the planning process is figuring out the other “who’s” as well. The Texas Fair Defense Act requires that an appointed attorney “make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed.” In order to meet our requirement for same day contact my office immediately sends a letter to every client to let them know that I have been appointed to their case. In this letter, it states that I will come visit them if they are in jail or requests that they contact my office for an appointment if they are out on bond. In addition to the letter, we send a Criminal Intake form (located in the Appendix) to each client in custody. The form is two pages, front and back, and provides my office with all of the basic information that I will need to start on the case; biographical information, personal contacts, written permission to discuss the case with others, witnesses, criminal history, and mental and physical illness information. This letter, along with a SASE and the client information form are under one ounce (thus requiring only one stamp) and provides me with a way to start working on the case immediately. It also gives my client important advice to not talk to law enforcement nor discuss the case on the monitored jail phones. Client contact is not only required but is essential in getting the information that the attorney will need for the case. Following the letter, the lawyer must talk to the defendant face-to-face as soon as possible. For retained clients this is generally easy an easy task because they will come to the office to consult and hire. For appointed clients, it is more difficult because the attorney will often need to track them down. Jail clients can be the easiest to find but are often the most difficult to 4

Game Day Ready Pre Trial Investigations

visit for the busy attorney. In many counties you can take advantage of secure video conferencing software to set up an initial trust-building meeting with the client, allowing them to know who their lawyer is and that someone is working on the case. Phone and video meetings, however, are limited as they present a barrier between lawyer and defendant. It is hard for the defendant to trust someone on a screen and reveal important details about the case and his life. Nothing is as beneficial as a face-to-face meeting where your client can look you in the eyes and discuss his needs. When lawyers meet with clients for the first time it is common to focus on the events surrounding the offense; however, “crime doesn’t happen in a vacuum” 1. The lawyer must go further than the offense at hand to understand the defendant’s history so he can develop an understanding of how the offense was committed, as well as important information that will be useful for further investigation and during negotiations. The discussion begins at birth. The conversation must start at the beginning because all the influences and choices in a defendant’s life eventually brought them to be accused of the offense. The reason to ask these questions is because the practitioner needs to find something that the jury can relate to and identify with the defendant. ARRANGE FOR RECONNAISANCE In short, reconnaissance is getting a sneak peek at the mission or the end goal. Arranging for it is simply gathering the resources to get the task done. This is the stage where I start to put my pieces into play. Assuming you will need an investigator, and you may not have the funds to hire one yourself, file a motion to get one appointed. Make sure you have a plan in place of how you want the investigator to proceed (go to the scene, talk to witnesses, review data dumps, etc.) This plan shouldn’t be vague because ambiguity almost always fouls a plan. For example, “go talk to these witnesses about X” is far different than “go talk to witness X about issue Y”. That small difference is going to help you and the investigator streamline the process.

Game Day Ready Pre Trial Investigations

Many folks file this motion ex parte, which is perfectly acceptable. I have used only one or two investigators over the last five years, so I presume the State knows I’m going to have one and who he is going to be. There is certainly a time and place for the EX PARTE motion, or, more importantly, the EX PARTE hearing. This is a tactical decision for the individual lawyer. I have a solo practice and tend to think of the investigator as a part of the team; therefore, the state may know he is coming, but they are also aware of what he is bringing to the table. More often than not, the State’s knowledge about who is investigating or what is being investigated is their problem, not mine. In this same stage, get your other experts on board, e.g., make them aware of possible usage. In a sex related case, you can assume you will need an evaluation and it may be beneficial to have a conversation with that professional about what they would like to know before talking with your client. There probably isn’t a cause number at this point so consider sending a notice of appearance that also asks for 39.14 compliance. We say, “informal”, in case the State wants to complain about the parameters of the request, knowing that we will file a 39.14 motion and order as soon as the case is filed. Two things are happening here: 1. you are putting the State on notice that they need to comply; and 2. you can show your client that you have made a request. In the ongoing process of interviewing and consulting with your client you will have likely gathered some of the following: a. b. c. d. e. f. g. h.

Client’s version of the incident Copy of the warrant of arrest and the PC affidavit, if applicable If applicable, a copy of the affidavit to support any search warrants Supportive (or non) eyewitnesses Relationship between the complaining witness and the client Other factors your client believes may be helpful All media reports Basic criminal history of all involved

Game Day Ready Pre Trial Investigations

My policy is to get the 39.14 motion/order e-filed directly behind the indictment (if your jurisdiction has been increasing the rate of informations due to the pandemic, as mine has, treat it like an indictment for discovery purposes). One of the early issues with “The Michael Morton Act” was how to resolve any disputes. I believe some of the recent revisions have resolved that for the most part but you still want to get a signed order as soon as possible to prevent any problems down the road. MAKE THE RECONAISSANCE Equal parts: 1. Most Important Stage; 2. Hardest Stage. I always tell clients that the only real resources I have are my time and my reputation and time is limited. This is why I spend a lot of ‘time’ thinking and preparing when initially putting the planning and arranging into action. My primary objectives are the scene and the witnesses. Additionally, the client has certainly helped get us here but now we have a duty (based on the present state of “The Michael Morton Act”) to independently investigate the allegations. With respect to the State’s file, the following are examples of what to look for that can assist in resolving the case: a. b. c. d. e. f. g. h. i. j.

What is the theory of the prosecution? The reason for arrest? How was probable cause established? What witnesses were identified in the investigation? Are there discrepancies between the reporting about witnesses and your client’s version? Are there discrepancies about the narrative (Let your client review the information)? Have you dealt with this officer(s) before? Is there a recognizable pattern of behavior? Has this officer(s) dealt with your client before? Has the prosecution dealt with him before? If the indictment alleges enhancements, or your criminal history search indicates the possibility, you need to look at prior

Game Day Ready Pre Trial Investigations

judgments for some assistance. Can they prove them; and does it change anything regarding the present case? The entire scene must be investigated and documented; here are examples of things to investigate: a. If the scene is a residence, determine the dimensions and square footage (this applies to any enclosed space) b. What is the layout? c. If a roadway or open space, what is the visibility? d. What is the lighting situation? e. If there are eyewitnesses, where were they at the time and what does that view look like? f. What is the client’s connection to the scene? g. Complaining witnesses’ connection? h. Do any of the witnesses have a connection to the scene? i. Are we talking a remote or populated area? j. If applicable, how long did it take law enforcement and/or emergency services to respond? k. Pictures and video of surrounding businesses or residences (complete a canvas of the surrounding area) (Timing is an issue here because some businesses re-use the tape after a certain period of time. I’ve seen as long as one week and as short as 24 hours). It is surprising how many and what types of residences have ring cameras now l. Google Maps and Google Earth (Be careful, these are good for distances but a poor substitute for straight line video) m. Dispatch Logs and 911 calls n. Property records (deed) will determine ownership. You may have to get a rental or lease agreement to determine possession. o. Social media accounts (Twitter, Snapchat, Facebook, Instagram, Tik-Tok, Pinterest) are invaluable resources regardless but can also establish a connection between people and the scene. p. Get a copy of the floor plan (county records or online)

Game Day Ready Pre Trial Investigations

q. Have a tape measure (About five years ago, I bought a wheeled tape measure for $18.98 on Amazon; it has paid for itself many times over) Getting gameday ready for trial cannot happen without interviewing all witnesses. Interviews often reveal the accuracy, or lack thereof, of statements attributed to individual witnesses. You also never know if the State is giving you complete statements. COVID-19 has certainly thrown a wrench into trial preparation, if your jurisdiction is even allowing trials at this point; but to the extent possible witnesses should be interviewed in person. They are much less likely to decline to be interviewed in person versus telephonically. Telephonic interviews are impersonal, and people are, generally, more comfortable looking eye to eye with the interviewer. Whenever possible, interviews should be recorded even if all you have is a smart phone. Recording an interview can provide impeachment material in the event of an inconsistent statement at trial. Sometimes, recordings can clear up any claim that the lawyer or the investigator coerced the statement or posed as law enforcement during the interview. It is not uncommon for lawyers to want to do the bulk of the work in pre-trial preparation so that they are intimately familiar with every facet of the case, but, whenever possible, a professional investigator should conduct the interviews to minimize the possibility of a conflict of interest. When investigating witnesses, one of the first stops should be social media. For whatever reason, people post all kinds of things for strangers to see about them. It is amazing what some people will say or do on social media. It can be a goldmine for background information like drug use, alcohol use, promiscuity, acts of violence, religious beliefs, eating habits, illness (real, imaginary, mental), employment, education (or lack thereof), travel habits, and much more; you can also monitor the comments for information about the case or potential witnesses. A person’s friends list may help lead you to other potential witnesses who can then be interviewed for background.

Game Day Ready Pre Trial Investigations

With all the good information you can get from social media, there are substantial risks. I generally don’t want my client, or his family, involved in any conversations online with the complaining witness or any witnesses; it is advisable that they don’t engage in social media during the pendency of the case. Same goes for lawyers, based on what you are posting, friending, or liking there are very real ethical issues. You do not want to be accused of influencing and/or tampering with the complaining witness or potential witnesses. A hands-off approach to social media is best, meaning, find the information and monitor it but don’t post or comment to avoid any misinterpretation. COMPLETE THE PLAN As you are gathering information, discovery, and evidence, what do you do with it? If I know a case is going to trial, I will go ahead and make a trial notebook. I have a collection of 3- or 4-inch binders laying around for that purpose. TCDLA has a set of tabs that is a good start but sometimes that set may not be exhaustive for the type of case or the dynamics of your particular case. Below are some examples of tabs I may use in a trial. a. Indictment b. Offense Reports (for every LEO you will want to have their narrative in their tab, but I like to have one full version of the completed report for reference) c. Dispatch Log(s) d. 911 call(s) (have the transcript whenever possible) e. Client interview (I generally transcript this as well) f. Communications with client g. Communications with the Court h. Communications with the State i. Expert(s) (Consider using multiple tabs for each expert. In one you should have the report or evaluation on this case, and in the others any background information you have about the expert) j. Law Enforcement (TCOLE reports, any disciplinary information, individual narratives, or supplements.) Note: For each officer, I make a transcript of their report, meaning I underline and number 10

Game Day Ready Pre Trial Investigations

each line of the report for quick reference when questioning that witness. That is why I have a tab for a clean copy. k. Witness (Statements if any, relevant background information, any public record you found, anything from private database searches) l. Medical records m. Miscellaneous records (For example, if there are CPS records, or, a large data dump, you will want it to have its own tab for quick reference) n. Complaining Witness o. Draft of Jury Charge p. Search Warrant q. Pretrial Motions r. Jury List s. Scene research (you will generally have multiple witnesses attached to the scene) t. Client u. Co-defendants, if any The order is a matter of personal preference, but I leave some room to move things around at the last minute depending on what I think will be the flow of the trial. Mine is a rural solo practice so I know that I likely won’t have a second chair at trial, and I don’t have a large staff to review or discuss cases; so, over the years I have taken to having a fellow attorney give me thirty minutes or an hour to talk about any discovery issues or avenues I may not have travelled down. Sometimes that outside perspective will lead you to information you hadn’t thought about because of your focus on the immediacy of the case. Of course, a second chair is optimal, but we are all busy and all have our own caseloads.

Game Day Ready Pre Trial Investigations

ISSUE ORDERS /SUPERVISE Plans tend to crumble when the objective is not clear, so supervision should be an ongoing process. You know what your objective is (based on the theme/theory of your case) and how best to get supportive information to back that theme. Whatever assistance you obtain needs to have a clear understanding of your goal as well so that the preparation is efficient, and you aren’t chasing rabbits down holes. Please consider the above a means of organizing your pretrial investigation; I do not expect you to think like a Marine but certainly organization is a trait of the well-prepared lawyer. Many cases are won by out-prepping the other side. Good luck and good verdicts.

Game Day Ready Pre Trial Investigations

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Lunch Presentation: Keep Your Head in Game | Mental Health

Speaker:

John Fritz

11667 Saxon St Dallas, TX 75218-1837 (214) 557-2780 phone johnlfritz@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

KEEP YOUR HEAD IN THE GAME MENTAL HEALTH

by John L. Fritz

john@johnfritzlaw.com 214-557-2780

Introduction: Mental Illness is Everyone’s Concern In 2014, mentally ill people in jails and prisons nationwide outnumbered those in state hospitals by 10 to 1. 1 In Texas in 2016, as much as 24 percent of the inmate population had a mental health need, and adults with untreated mental health conditions were eight times more likely to be incarcerated than the general population. In 2010, adults with severe and persistent mental illness were eight times more likely to be in jail or prison in Texas than in a state psychiatric hospital. 2 In 2013, over 40% of people booked into Texas county jails had some prior contact with the Texas public mental health system. 3 Given these numbers, you will

have to deal with, or are already dealing with, defendants with mental health issues.

While governments have almost always neglected the needs of the mentally ill and intellectually disabled, the situation in the United States has deteriorated over the last 40 years. Public funding for psychiatric and social services plummeted in the 1980s. In 1981, the Reagan administration spearheaded the passage of legislation that shifted responsibility for mentally ill patients back to the states, reversing the Carter-era Mental Health Systems Act. The legislation created block grants for the states, but federal spending on mental illness declined. 4 Spending tax money on mental illness, which carried an even greater stigma then than it does now, was politically unpopular. In the early 1990s, Texas dramatically increased spending on prison construction, leading to a 100,000 bed increase in prison capacity. 5 From 1980 to 2013, spending on prisons quadrupled nationwide, and incarceration rates followed. 6 As a natural consequence of these parallel changes, the people previously using public mental health services have increasingly found their way into jails and prisons. “When the mental health system functions poorly, the criminal justice system too often becomes the default provider of treatment and care for people with serious mental illnesses. This mode of operation is inhumane, ineffective, and expensive.” 7 Resources: Dealing with mental health issues is complicated, delicate, and can have profound consequences. The criminal defense bar has begun to recognize the overlap between mental health issues and the criminal justice system, and resources for dealing with these issues in criminal practice are readily available, from practice guides to specialty courts. Never hesitate to ask for help. There are experts all around you, and resources have become plentiful. Take advantage of them. Here are just a few of the resources available online: •

•

Client Mental Health on the TCDLA website: TCDLA has dedicated a great deal of time and effort to assisting criminal defense attorneys dealing with mental health, including an entire section of the members only section of its website at https://www.tcdla.com/TCDLA/Members_Only/Client_Mental_Health/TCDLA/ Client_Mental_Health.aspx. The National Alliance on Mental Illness distributes the publication Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide as a free PDF online at https://namitexas.org/texas-criminal-justice-guide/.

•

The Office of Court Administration offers an interactive Guide for Addressing the Needs of Persons with Mental Illness in the Court System at http://www.txcourts.gov/media/1441120/guide-for-addressing-the-needs-of-personswith-mental-illness-in-the-court-system.pdf. The Texas Indigent Defense Commission provides a booklet on Texas Mental Health Defender Programs at http://www.tidc.texas.gov/media/ 8d87ba50cbc6d38/mental-health-defender-programs.pdf.

Competency The two key mental health issues facing criminal defense attorneys in their practices are competency and insanity. While the two concepts overlap, competency and insanity are not the same thing under the law. Insanity refers to a defense, and it focuses on the defendant’s mental state at the time of the offense. We will discuss the insanity defense below. Competency addresses a defendant’s state of mind prior to trial (or prior to a motion to revoke probation or a motion to proceed to adjudication). Although we often refer to this issue as competency, what we are really talking about is incompetency. Chapter 46B of the Code of Criminal Procedure deals with determinining a defendant’s competency, and it applies to all felonies and any misdemeanor punishible by confinement. TEX. CODE CRIM PROC. art. 46B.002. The Code provides two independent definitions of incompetency: the inability to consult or the lack of rational and factual understanding of the proceedings: A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. Id. at 46B.003 (emphasis added). Raising The Issue: Competency may be raised at any time after charges are filed, by any party or the court itself. In fact, article 16.22 of the Code of Criminal Procedure requires jailers and sheriffs to notify the magistrate even prior to charges being filed if they “receive[] credible information that may establish reasonable cause to believe that the defendant [in their custody] has a mental illness or is a person with an intellectual disability.” Even before that, law enforcement agencies must “make a good faith effort to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center” with some limitations, under article 16.23. Raising the issue compels the court to hold an informal inquiry regarding incompetency. TEX. CODE CRIM PROC. art. 46B.004. Defense counsel can file a motion suggesting

incompetency to compel such an inquiry. While this potentially raises ethical issues regarding client confidentiality, you may base such a motion on conclusory statements without disclosing any protected communications. 8 Once the issue is raised, the court must stay all criminal proceedings. At any point during this process, the State may move to dismiss all charges irrespective of the defendant’s competency. The court then must discharge the defendant unless it finds evidence of incompetency, in which case it may proceed under Subchapter F, which provides for the transfer of a defendant’s case to civil court for commitment proceedings. See TEX. CODE CRIM. PROC. art 46B.151, et seq. Expert Evaluation If , after its informal inquiry, the court finds evidence of incompetence, it must order a competency evaluation by neutral, qualified expert. During the examination and in any report based on the examination, the expert must consider: (1) the capacity of the defendant during criminal proceedings to: (A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings; (B) disclose to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify; (2) as supported by current indications and the defendant's personal history, whether the defendant: (A) is a person with mental illness; or (B) is a person with an intellectual disability; (3) whether the identified condition has lasted or is expected to last continuously for at least one year; (4) the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and (5) if the defendant is taking psychoactive or other medication: (A) whether the medication is necessary to maintain the defendant's competency; and (B) the effect, if any, of the medication on the defendant's appearance, demeanor, or ability to participate in the proceedings. TEX. CODE CRIM. PROC. art. 46B.024. Within 30 days after the order of examination, the expert must provide a report to the court stating an opinion on the defendant’s competency or incompetency. Once the court receives the report, it may proceed to a determination of competency. Initial Trial Court Determination of Competency

The trical court must conduct a trial on the issue of competency, unless no one opposes a finding of incompetency or requests a trial. Id. at 46B.005(c), 46B.054. At the request of either party, the trial court must empanel a jury to determine competency. Id. at 48B.051(a). The jury’s verdict must be unanimous. Id. at 46B.052(b) Absent a jury request, the court may make the determination. A defendant is presumed competent unless proven incompetent by a preponderance of the evidence. Id. at 46B.003(b). If a defendant is found incompetent and the court finds the defendant likely to be restored to competency in the foreseeable future, the court will commit the defendant to the appropriate facility to accomplish this restoration under Subchapter D of the Code of Criminal Procedure. Restoration of Competency: If Court finds the defendant is likely to be restored to competency in foreseeable future, it may order inpatient commitment (60-120 days), a jail-based restoration program (where available), or, in some limited circumstances, outpatient treatment. TEX. CODE CRIM. PROC. art. 46B.071-073. Regardless of the program ordered by the court, the facility assesses and treats the defendant and reports progress to court. The type of notice the court will received depends on the program. Inpatient or jail-based restoration programs send notice to the court when 1) the defendant is competent, 2) the defendant is not competent, but is ready for an outpatient program, 3) the defendant will not regain competency in foreseeable future, or 4) the defendant’s commitment term is set to expire (15 days). Id. at 46B.079. An outpatient program will send notice to the court when the defendant is competent or when they determine the defendant will not become competent in the foreseeable future. Id. Within 15 days of the notice from the competency restoration program, the court must return the defendant and determine competency. The court must determine competency within 20 days of report. Id. at 46B.084. If a party objects to the report, the court must conduct a hearing; absent an objection, the court may determine competency without a hearing based on the report alone. Id. In either event, if the court determines the defendant is now competent, criminal proceedings resume. The defendant receives credit towards any sentence for all time spent in custody awaiting treatment and for the time in treatment itself. Again, this may raise both tactical and ethical issues for the defense attorney. If the defendant only faces jail time for the offense charged, they may feel inclined to enter a plea to time served after being found competent, regardless of culpability. If Court finds the defendant is still not competent after the commitment, it must determine if there is evidence of mental illness or intellectual disability which warrant commitment under the Health & Safety Code. If so, and if charges have been dismissed, the defendant must be released or transferred to civil court for commitment proceedings. If the defendant still has charges pending, Subchapter E of the Code of Criminal Procedure sets forth the standards for the criminal court to conduct a commitment hearing under the procedures provided under the Health & Safety Code. If the defendant does not meet the standards for commitment after a Subchapter E hearing, the defendant should be released. Subchapter E Commitment:

If the court defermines after a Subchapter E hearing that the defendant meets the standards for commitment under the Health and Safety Code, they will be committed for continued restoration. Depending on the circumstances, the competency restoration will resume at a HHSA Maximum Security Unit (MSU), at a non-MSU State Hospital, through an outpatient restoration program, or at a State supported living center (SSLC), if the defendant has an intellectual disability. The facility continues to pursue restoration of defendant to competency. A redetermination of competency after commitment is available at the request of any party, the court, or the treating facility. The court may again appoint an expert under Code of Criminal Procedure article 46B.111. If all parties agree the defendant is competent, criminal proceedings resume. If not, the court must conduct a hearing. At this point, competency is presumed if the head of the facility submits opinion and that presumption must be overcome at the hearing by a preponderance of the evidence. If the court finds the defendant remains incompetent, the defendant returns to the facility for continued restoration. The head of a facility must notify the committing court if a defendant on Subchapter E commitment should be released. This includes release for the expiration of commitment under Mental Health Code, because the defendant no longer meets commitment criteria (under the Mental Health Code, a person can only remain involuntarily committed as long as inpatient care is necessary for treatment), or because the defendant has “timed out” under Art. 46B.0095. Court may hold a hearing on these matters. If Court determines release is not appropriate, may enter an order that the defendant not be released. 46B.107(e). The Insanity Defense In many ways, competency is much more complicated than the insanity defense. The insanity defense focuses less on mental health diagnosis and much more on current political views surrounding the intersection of mental illness and criminal culpability. The insanity defense has always been the subject of passionate debate, and that debate comes to the forefront when a defendant charged with a notorious crime raises the defense. John Hinckley, Jr. provides an instructive example of this public and political dynamic. On March 30, 1981, Hinckley, armed with a handgun, attempted to assassinate President Ronald Reagan. He wounded Reagan, police officer Thomas Delahanty, Secret Service Agent Tim McCarthy, and White House Press Secretary James Brady. The following June, Hinckley raised the insanity defense at his trial. The jury found him not guilty by reason of insanity. This led to an uproar across the country. Many people felt Hinckley got away with his crimes and walked free. It is worth noting that Hinckley was committed after his trial and remained Institutionalized until July 27, 2016, 38 years later, when he was allowed to live outside the institution on “convalescent leave.” Legislatures around the country—including Texas--updated statutes to limit the availability of the insanity defense. The M’Naghten Test

Indeed, public outcry has shaped the insanity defense since its earliest days. In January 1843, Daniel M’Naghten shot and killed the private secretary of British Prime Minister Robert Peel, Edward Drummond, believing him to be Peel. 9 At trial, he was found not guilty by reason of insanity. In 1865, he died in Broadmoor Asylum. A judicial panel was created to reform the insanity defense, and they came up with the M’Naghten test. The “M’Naghten Test” allows a defense to criminal charges if “at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” Queen v. M'Naghten, 8 Eng. Rep. 718 (1843). For many years the insanity defense in Texas was a modified version of the M’Naghten test. The Model Penal Code In 1973, Texas adopted a variation on the Model Penal Code version of the insanity defense. “It combines the alternatives of impairment of cognitive capacity emphasized in the M'Naghten formula of the prior Texas law, and impairment of volitional capacity that is the basis of the irresistible impulse test. Unlike the Model Penal Code test which requires only lack of substantial capacity, 10 the Texas Code formulation seems literally to require complete impairment of either cognitive or volitional capacity.” Charles P. Bubany, The Texas Penal Code of 1974, 28:1 SOUTHWESTERN L.REV. 292, 312 (1974). After Hinckley: The Insanity Defense Today After the national uproar over Hinckley’s successful insanity defense, Texas promulgated the insanity defense that remains substantively unchanged today: (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. (b) The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. TEX. PENAL CODE § 8.01. The Court of Criminal Appeals has clarified the meaning of “wrong” in this definition: “Under Texas law, 'wrong' in this context means 'illegal.' Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008). If you intend to raise the insanity defense at trial, you must file notice of intent with the court and serve the prosecution at least 20 days before trial, or at the pretrial hearing if it is more than 20 days from trial. TEX. CODE CRIM. PROC. art. 46C.051. If you fail to give proper notice, you may be barred from presenting an insanity defense. The trial court may, on a finding of good cause for failure to serve timely notice, still allow evidence of insanity. Id. art. 46C.052.

Once it becomes clear that the defendant’s sanity at the time of the offense may be an issue, counsel should begin to prepare: •

Talk to the defendant his or her family about past problems, diagnoses, or hospitalizations; Track down medical records and obtain copies in admissible form; Find out if the defendant has been treated in custody, and get those records; Get an independent expert to evaluate your client, his records, and the facts of the case; Educate your expert on the law, and get educated on your client’s mental illness.

• • • • • If your client cannot afford to retain an expert, you are entitled to have one appointed. “[W]hen a[n indigent] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985)(emphasis added). The insanity defense is a “confession and avoidance” defense, meaning the defendant must first be found culpable of the underlying offense before counsel can establish the affirmative defense of insanity: The judge or jury shall determine that a defendant is not guilty by reason of insanity if: (1) the prosecution has established beyond a reasonable doubt that the alleged conduct constituting the offense was committed; and (2) the defense has established by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct. TEX. CODE CRIM. PROC. art. 46C.153(a). Defense counsel bears the burden of production (“the issue of the defendant’s sanity shall be submitted to the jury [or considered by the court] only if the issue is supported by competent evidence”) Id. arts. 46C.15-52, and the burden of proof (“If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence”) TEX. PENAL CODE §2.04. “Winning” An Insanity Case So what happens if you “win”? If a defendant is found not guilty by reason of insanity and the conduct did not involve serious bodily injury or the use or exhibition of a deadly weapon, the court must determine if there is evidence of continued mental health or intellectual/ developmental disability (IDD) issues. If there is, the court transfers the matter to a court with probate jurisdiction for possible civil commitment. TEX. CODE CRIM. PROC. art. 46C.159. If the conduct did involve serious bodily injury or the use or exhibition of a deadly weapon, the court will order a 30-day commitment to a State Hospital for an evaluation of the defendant’s present mental condition. The facility will generate a report, which will include whether the defendant

suffers from severe mental illness or intellectual/developmental disability, whether the defendant meets civil commitment criteria, and whether the defendant can be safely and effectively treated in an outpatient setting. TEX. CODE CRIM. PROC. arts. 46C.158, 251-52. Based on the facility’s report, the court holds a hearing to determine what happens to the defendant next. The court may order commitment to a Maximum Security Unit (MSU) of a State Hospital, commitment to a Non-MSU State Hospital or State Supported Living Center (IDD), enrollment in outpatient/community-based treatment, or a transfer to Probate Court for civil commitment proceedings. If the court orders commitment, it may renew commitment for 12 months if it deems it appropriate. Using Mental Health Issues to Challenge Mens Rea Defense counsel may also use mental health issues without raising an insanity defense by attacking the defendant’s mens rea: “[R]elevant evidence may be presented which the jury may consider to negate the mens rea element. And this evidence may sometimes include evidence of a defendant's history of mental illness.” Ruffin v. State, 270 S.W.3d 586, 596 (Tex. Crim. App. 2008) (reaffirming Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005)). The trial court in Ruffin held that such evidence was inadmissible absent a properly presented insanity defense (the defendant had not given notice) because it would confuse the jury. The Court of Criminal Appeals reversed, saying that “[w]e … have confidence that our Texas judges and juries are sufficiently sophisticated to evaluate expert mental-disease testimony in the context of rebutting mens rea just as they are in evaluating an insanity … claim.” Id. at 595. Mental Health and You In 2016 the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation conducted a nationwide study looking at substance abuse and mental health concerns among attorneys. 11 The study found, among other things: • 20.6% of attorney respondents scored at a level consistent with problematic drinking • This compares to 11.8% of respondents drawn from a broad, highly educated workforce • 19% of respondents reported experiencing mild or higher levels of anxiety • 28% of respondents reported experiencing mild or higher levels of depression • 11.5% of respondents reported suicidal thoughts at some point during their career Rates of problematic drinking increased significantly for younger, less experienced attorneys. The study found that problematic drinking compounded other mental health issues, leading to higher levels of depression, anxiety and stress. Just as attorneys need to stay attuned to mental health issues affecting our clients, we need to take care of ourselves as well. One problem the ABA/Betty Ford study recognized was attorneys’ reluctance to seek help because of concerns about others finding out they were having problems and about privacy and confidentiality generally. Thankfully, the growing recognition of the mental health and substance abuse problems facing attorneys has led to more resources for help.

The Texas Lawyers Assistance Program (TLAP) provides a whole range of services, from online CLE programs, articles and videos to a 24-hour hotline where attorneys can get information and referrals. And attorneys can take comfort in the fact that virtually all communication with TLAP is confidential by statute. TCDLA has a wellness committee that also provides help to struggling attorneys, including regular “Mindful Monday” presentations (which are free) and other periodic programs on more focused topics. Conclusion Whether you are concerned about your client’s competency, your client’s mental state at the time of the offense, or your own ability to cope with the stresses of criminal practice and everyday life, you can find help. Resources and institutions for dealing with mental health issues are available for you and your clients. All you have to do is ask for help.

See Treatment Advocacy Center & Nat’l Sheriffs’ Assoc., THE TREATMENT OF PERSONS WITH MENTAL ILLNESS IN PRISONS AND JAILS: A STATE SURVEY 6 (April 8, 2014), http://www.treatmentadvocacycenter.org/ storage/ documents/treatment-behind-bars/treatmentbehind-bars.pdf (estimating over 350,000 inmates with severe mental illness in prisons and jails versus approximately 35,000 in state hospitals). 2 TEXAS JUDICIAL COUNCIL MENTAL HEALTH COMMITTEE REPORT & RECOMMENDATIONS, at 2 (Oct. 2016), available at https://www.txcourts.gov/media/1436230/report-and-recommendations-of-tjcmental-health-committeefinal-w-cover.pdf. 3 Mental Health Screening and Intake in County Jails, CENTER FOR PUBLIC POLICY PRIORITIES (April 30, 2014), https://capitol.texas.gov/tlodocs/83R/handouts/C2102014050510001/ 719abd7c-9cd9-4092-aae946d5765f52cf.PDF. 4 Jessica Placzek, Did the Emptying of Mental Hospitals Contribute to Homelessness?, KQED (December 8, 2016), https://www.kqed.org/news/11209729/did-the-emptying-of-mental-hospitals-contribute-to-homelessness-here 5 Eric Schlosser, The Prison-Industrial Complex, THE ATLANTIC (December 1998), https://www.theatlantic.com/magazine/archive/1998/12/the-prison-industrial-complex/304669/. 6 Emma Brown & Danielle Douglas-Gabriel, Since 1980, spending on prisons has grown three times as much as spending on public education, THE WASHINGTON POST (July 7, 2016), https://www.washingtonpost.com/news/education/wp/2016/07/07/since-1980-spending-on-prisons-has-grown-threetimes-faster-than-spending-on-public-education/. 7 National Alliance on Mental Illness (NAMI), GRADING THE STATES: A REPORT ON AMERICA’S HEALTH CARE SYSTEM FOR ADULTS WITH SERIOUS MENTAL ILLNESS 43 (2009), available at http://www.nami.org/grades. 8 See TEX. CODE CRIM. PROC. art. 46B.004(c-1) (“A suggestion of incompetency is the threshold requirement for an informal inquiry . . . and may consist solely of a representation from any credible source that the defendant may be incompetent”). 9 Sir Robert Peel had established the Metropolitan Police Force for London based at Scotland Yard. An early insult for metropolitan police officers was “peelers.” 10 “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” ALI Model Penal Code § 4.01(1)(emphasis added). 11 See Study on Lawyer Impairment, AMERICAN BAR ASSOCIATION (January 19, 2019), https://www.americanbar.org/groups/lawyer_assistance/research/colap_hazelden_lawyer_study. 1

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Instant Replay | Technology in the Courtroom

Speaker:

Joseph Hoelscher 3030 Nacogdoches Rd Ste 222 San Antonio, TX 78217-4540 (210) 222-9132 phone (888) 519-8229 fax joe@hgclaw.com www.hgclaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Special Teams | Experts & Witnesses

Speaker:

Jenifer Zarka 620 N Flores St San Antonio, TX 78205 (210) 468-0400 phone (210) 855-5630 fax jenny@zarkalawfirm.com www.zarkalawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

SPECIAL TEAMS- EXPERT WITNESSES A criminal trial is serious business for all involved- especially for the accused. Every decision made by the defense team in a criminal trial can greatly impact the outcome of the case. In American football, special teams are defined as those players on the field during kicking plays. Kickers are specialists who put foot to the ball during these plays. Kickers are not the only players on the field during these plays; there are 21 other players on the field during each kicking play. Kicking plays make up about 20% of plays in a football game, but the resulting field position has a huge impact on the results. A kicker can be the hero of a game, but also the villain. In some criminal trials, experts are the “special teams” players, used by the parties to help the fact-finder make important decisions about the evidence in a case. Your expert will not be on the stand for an entire trial; sometimes not at all. Yet, your expert can greatly impact the outcome by influencing how the fact-finder views the evidence. There are two categories of expert witnesses, each with different rules surrounding their participation in a trial. These are consulting and testifying experts. Just as in football, an expert witness can make or break an entire trial. Specialty Blocking- Using Consulting Experts to Thwart the State’s Case A consulting expert is one who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not expected to testify. The Court of Criminal Appeals has agreed that the policy behind the consulting expert privilege is to encourage parties to seek advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary’s efforts and diligence. These experts should be “used as a shieldnot as a sword (not to thwart justice or to defeat the salutary object of discovery).” Pope v. State 207 S.W.3d 352 (Tex. Crim. App. 2006)

There is no need to disclose a consulting expert under Article 39.14 of the Texas Code of Criminal Procedure. This allows attorneys to benefit from the advice of the consultant during trial preparation without the obligation to disclose the expert to the prosecution. The discussions and shared material between a defense team and the consulting expert are subject to attorney-client privilege. However, if you designate a consulting expert as an expert under Article 39.14(b), the expert’s identity and qualifications are not protected by the work product privilege and the State may comment on your failure to call this witness to testify at trial. Disclosure of the name and contact information of the expert is required. Id., Pope v. State, supra. Consulting experts can be hired and used throughout your trial preparation and during each phase of the trial to counter the evidence that the state will bring. Rather than taking your time to learn the science involved with a spiral fracture in an infant, call your own child abuse expert to review the material from the hospital. You are not likely an expert in this area and the 6th Amendment requires you to use the tools necessary to properly do your job to confront a witness on the other side. Allow the expert to teach you what is necessary for a staunch defense. You can develop questioning for the physician (or other expert) the state is sure to bring to court in this type of case with the assistance of your expert. Your expert will help you assess the facts and data underlying the state’s expert opinions. You can even learn which questions to ask and which to avoid strengthening your defense with assistance from your expert. Kick Returns- Using Testifying Experts to Secure the Best Field Position for Your Defense If there is a chance you might call an expert whom you have consulted as a witness at trial and the opposing side has requested designation of any potential experts, you must designate that person as a testifying expert. If you have designated a person as a potential testifying expert, you must be willing to divulge the experts contact information to the state. Pope v State, supra.

Kick return specialists often stand alone in the open field. Everyone knows who they are, like a designated expert. There is no surprise that this player wants to run the ball back as far as possible. Similarly, the state will expect something from this expert on your team. Help arm your expert with all the relevant documents and information surrounding your defensive strategy so that your expert can return the kick for a touchdown! Show your physician expert the medical records. Give the weapons expert the forensic lab results provided by the state. Tell your expert what the state is alleging. Let the expert formulate a theory and then ask questions. Don’t be afraid to ask questions to fully grasp the theory behind the science. If you are not sure what to ask, get the expert to guide you in what to ask and why. Again, the 6th Amendment requires you to arm yourself with the proper tools and questions strategy to confront the witnesses for your client. Use your experts to strategically ask all the right questions. Draft Day- Writing the Perfect Motion to Get Court Funds for an Expert "Football kickers are like taxi cabs," NFL Legend Buddy Ryan once said, "You can always go out and hire another one." Acquire your specialists (experts) by drafting an Ake motion! (See attached.) If the first expert you interview does not have the answers you are seeking, look for another to work on your case with you. Ask other attorneys who they have used in similar situations. Check with the TCDLA or other local criminal defense bar for advice on experts. Search for experts on Google. There are professionals in many fields who love the opportunity to work on cases. You can always go out and hire another expert to work on your case with you. Even if your client does not have the money to hire an expert, your client has a due process right to state-funded expert assistance. Draft an ex-parte Ake motion and approach the judge. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). If the state has an expert, you need one on your side to counter the opinion, consult, and possibly testify to protect your defensive

strategy. The Ake motion is filed ex-parte and sealed so that the state cannot see who your expert is at this point. You are protecting your field position and establishing your defense. Your appointed expert should be independent of the state. Think of a kicking team with no one on the other side of the ball. Your expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the state’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996), citing DeFreece v. State, 848 S.W.2d 150 (1993). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.” You get to have your players opposing those of the state to make the trial fair. Training- Working With the Expert to Craft Proper Questions for Trial After the court grants your Ake motion and gives you unlimited funds to use to hire your expert (clearly this is a joke and you should be laughing out loud), send an engagement letter to your expert. It is important to consult with an expert prior to filing the Ake motion. Know what the expert charges so that you can request the proper funding from the court. Ask the expert how much time is necessary for the initial review of the case. Show the court that you are prepared and ready to provide effective assistance of counsel by preparing your case with an expert. Then, after the court grants limited funding (this is the expected result of the Ake motion), provide your expert with all the documents and evidence that you want him/her to review. This sets the expectations and guidelines for your expert and establishes exactly what you expect him/her to do. Ask your expert to notify you promptly if the expenses are going over what is approved by the court. You may ask the court for additional funds in a motion for additional funds in a subsequent sealed, exparte motion. However, set time and money expectations with your expert early in the game so that you get what you need for your defense.

Keep in mind there may be things you don’t want your expert to do as well. Limit testing by your expert that may be harmful to your defense in case your expert has to testify later. Remind your expert that all information that you provide is confidential and privileged. Practice! Practice! Practice! Keep Working With Your Expert Throughout the Case TRE 705 allows an expert to state an opinion without giving the underlying facts or data for the opinion. However, the state may inquire about the underlying facts or data on cross examination of your expert. Make sure your expert is prepared for all that may happen in the trial. Discuss the potential harm from certain testing or information that could come out in the trial. Ask your expert questions about additional questioning and testing of your client to avoid any potential harm it may cause during trial. Before an expert states an opinion or discloses the underlying facts or data, TRE 705 allows a hearing, outside the presence of the jury, to examine the adverse expert about the underlying facts or data. You should request this hearing before the trial, if possible, to test the admissibility of the state’s expert’s opinion. The purpose of the hearing, which you should make clear on the record, is to obtain and explore everything the expert used to form his/her opinion. You want to challenge the reliability and the relevance of the expert’s testimony. You may also request additional discovery based on the hearing. Ask for everything the state’s expert used to prepare for the hearing so that you may review with your expert before the trial.

Review Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) to assist with your preparation for the hearing. Block That Kick! Use Your Expert to Challenge the State’s Expert Information

You are expected to do research on the experts that the state intends to use. Immediately request notice of the state’s experts. Article 39.14(b) of the Texas Code of Criminal Procedure provides that if you request notice no later than 30 days before trial, the party receiving the request must provide the information in writing. The information must be provided 20 days before the trial begins. The state’s file is another source of valuable scouting information.

You may find

information for doctors who examined a complaining witness, a medical examiner who performed the autopsy, even the police officer who conducted the field sobriety tests. These are all potential state expert witnesses who should be contemplated as such. Discuss any of these materials with your expert as well. Pick up that state file and run it all the way back for a touchdown! Block the state’s attempt to persuade the jury with their expert. See if your expert knows the state expert. Review the curriculum vitae of the state’s expert. Conduct a background check on the state’s expert. Find information on other cases the state’s expert has testified in in the past. Has the state’s expert ever been disqualified as an expert in any court? TRE 702 provides that 3 conditions must be satisfied before expert testimony is admitted: 1. The witness qualifies as an expert by reason of his or her knowledge, skill, education, training, or experience; 2. The subject matter of the testimony is an appropriate one for expert testimony; and 3. Admitting the expert testimony will assist the jury in deciding the case. Malone v. State, 163 S.W.3d 785 (Tex. App. – Texarkana 2005, pet. ref’d.). In your hearing, cover all the topics in this checklist from Gross, Michael C. (June 25, 2021) Expert Witnesses. San Antonio, Texas: 34th Annual Rusty Duncan Advanced Criminal Law Course, Texas Criminal Defense Lawyers Association:

1. The expert’s qualifications; 2. The validity of the underlying scientific theory used by the expert; 3. The technique used by the expert to apply the theory; 4. How the expert applied the technique; 5. The legitimacy of the field of expertise; 6. Whether the subject matter of the expert’s testimony is within the scope of that field; and 7. Whether the expert’s testimony properly utilizes the principles involved in the field. Maintain your edge and your field position and have your expert ready to counter all evidence the state will introduce by using these hearings as tools. KICKOFF Who is on the opposing team? We expect to see experts in the following fields: AV and Forensics Accident Reconstruction Arson and Fire Investigation Cell Phone Forensics Chemists Child Abuse Experts Classification Experts Computer Forensics Corruption Experts Crime Scene Reconstruction Deaf Defendants DNA Experts Domestic Violence Drug Trafficking Electronic Surveillance Entomology Eyewitness Identification False Confessions Fingerprints Firearms, Toolmarks, and Ballistics Forensic Dentists

Forensic Document Examiners Forensic Neurobiologists Forensic Pathologists Gang Experts Hair, Fiber, Trace Evidence Experts Intellectual Disability Intoxilyzer 5000 Investigators Jury Selection Experts Medicine General Practice Experts Mental Health Professionals Mitigation Investigators Neurobiologists Parole/Probation Experts Pathologists- general Pathologist- forensic Polygraph Examiners Primary Care Physician

Profiler Psychiatric Clinical Nurse Psychiatrist- forensic Psychiatrist- general Psycho-Sexual Disorder Psychologist- forensic Psychopharmacologist Restorative Justice Risk Assessment Sentencing Advocates Sex Offender Experts Standardized Field Sobriety Testing- including Horizontal Gaze Nystagmus Toxicologist Alcohol Only Undercover Tactics Use of Force

This is a non-exhaustive list of experts listed on the TCDLA website, www.TCDLA.com in the members only section. Using Special Teams to Win the Game Getting to Not Guilty With Your Expert Expert witnesses are the something extra that helps you prepare your case for trial. The consulting expert can help educate a savvy attorney and arm him/her with all the right questions for a state’s expert. An expert can also testify to make the jury question a state’s expert and the evidence presented. A defendant does not need wealth to be able to prepare with an expert, as a smart defense attorney will draft and present a motion for the court to appoint an expert to preserve the client’s due process rights in a case. Score extra points with your jury and prevent the state from scoring by hiring an expert witness today.

CAUSE NO. 2021-1234 STATE OF TEXAS

§ § § § §

v. JOHN DOE

IN THE DISTRICT COURT 379TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

SEALED, EX PARTE MOTION FOR APPOINTMENT OF EXPERT NOTICE TO CLERK OF COURT: This motion is to be considered EX PARTE and is filed for purposes of the record. This motion is required to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT. TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW ___________________, the Defendant in the above styled and numbered cause, and moves the court to appoint an expert to assist his/her counsel in this case and for cause would show the court as follows: I. The Defendant is charged by information/indictment with the offense of _____________, a __________ degree felony.

The defendant is currently indigent, and unable to pay for the

expenses needed for an appropriate defense. II. The court has appointed/retained the undersigned counsel to represent the Defendant in this case. The Defendant also requests that the court appoint XXXExpertNameXXX of the XXXCompanyNameXXX in this case and to assist the defendant in technology based investigation including cell tower analysis, mobile forensics (logical and physical acquisitions), computer forensics (desktop, laptop, and servers), including review of records, analysis of data,

statement comparison, and expert testimony. XXXExpertNameXXX is a licensed and insured as a digital forensic investigator by the Texas Department of Public Safety Regulatory Division. XXXExpertNameXXX has the experience, training, and infrastructure to accomplish the technological investigation required by the defendant in the above-entitled matter including thousands of hours in cybercrime investigations and digital forensics. XXXExpertNameXXX has testified as an expert in civil, family, and criminal courts throughout the State of Texas and in numerous other states throughout the United States as well as in United States Federal Courts. His Indigent Defense Rate is $XXXX per hour, and his expected time requirement to analyze the record and meet with parties in question is XXXXXXXXEstimate of HoursXXXX at this time with a total expected cost of XXXX. Tex. Code Crim Proc. art. 26.05; Ake v. Oklahoma, 470 U.S. 68 (1985); Tex. Const. art. I, § 10, 19.

WHEREFORE, the Defendant prays that this court appoint an expert and authorize the payment of reasonable fees and expenses for expert investigation relating to his case.

Respectfully Submitted, ______________________________ Attorney Name State Bar Number Address City, State, Zip Phone Fax Attorney for Defendant ***

CAUSE NO. 2021-1234 STATE OF TEXAS

§ § § § §

v. JOHN DOE

IN THE DISTRICT COURT 379TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

ORDER APPOINTING EXPERT Came on to be considered the Motion for Appointment of Expert for the Defendant, ***, in this case. Upon consideration of the motion and argument of counsel, it is hereby GRANTED. The court hereby appoints XXXXXXXXX Name & Company of Expert to be AppointedXXXX to provide expert services to Defendant and to his/her counsel in order to assist the Defendant's counsel in representing the Defendant in this case. The court hereby authorizes the payment of reasonable investigative fees and expenses upon submission of a statement of the fees and expenses incurred, not to exceed $ written approval. IT IS SO ORDERED. SIGNED AND ENTERED on __________________________, 20___. ____________________________________ JUDGE PRESIDING XXXX District Court of XXXXX County, Texas

without prior

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation January 14, 2022 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Rules of the Game/Penalties | Client Relationships & Communications

Speaker:

Paul Tu

19901 Southwest Freeway Sugar Land, TX 77479 (713) 774-2800 phone (713) 774-2808 fax paul@atblawfirm.com www.atblawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CLIENT RELATIONSHIPS & COMMUNICATIONS

PAUL TU, Sugar Land Arrington Tu & Burnett

ADVERTISING OR SOLICITATION An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters. 1 A “solicitation communication” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to a specific person who has not sought the lawyer’s advice or services, which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter. 2 The two definitions by the Texas Disciplinary Rules of Profession Conduct are very similar but turn on who the communication is directed and whether the lawyer’s advice or services are sought. An advertisement is communicated to the general public and a solicitation is directed at a specific person, and furthermore, the specific person did not seek the attorney’s advice or services. Based on this distinction, I believe any social media posts, such as Facebook or Instagram falls under the definition of advertisement. These communications are sent generally to the users’ social network or general public via the media platform. However, text message to individual cellular phone by its nature is a communication to a specific person. The State Bar of Texas Committee on Professional Ethics has not published an opinion on this specific form of communication. However, Comment 10 of Rule 7.03 does require text message or messages on social media to include “ADVERTISEMENT” as the first word in the message. 3 In my opinion, text messages are a solicitation or prohibited communication and therefore should not be used in any lawyer’s marketing strategy. CONTRACTS IN GENERAL Generally, a contract should be a legally binding agreement entered into providing for an exchange of defined performances. The structure and language of the contract should state plainly and simply to what each party is agreeing. Courts are now encouraging the use of plain language in a contract. However, the language used in the contract by its plain meaning should create sufficient legal effect to bind all parties to its terms and cover any reasonably foreseeable circumstance that might frustrate the execution of the contract by any party. The following is a review of an employment contract for legal services used by the law firm of Arrington, Tu & Burnett. L.L.P TITLE AND PREAMBLE The Title should accurately describe the substance and overall goal of the contract. Here the title is simply “Employment Contract for Legal Services in State of Texas vs. Client’s name.” A more detailed statement as to the specific services that will be rendered will be outlined later on in the contract. The Preamble specifically identifies the parties and what service is going to be provided. In this contract the client is identified by name. If a third party is paying the legal fees associated with your representation, this is a good opportunity to remind them of your ethical duties to the client and not the Tex. Disciplinary R. Prof. Conduct, Rule 7.01(b)(1) Tex. Disciplinary R. Prof. Conduct, Rule 7.01(b)(2) 3 Tex. Disciplinary R. Prof. Conduct, Rule 7.03. 1 2

third party. 4 The preamble goes on to describe the Cause Number of the case, the county in which the case is pending, and the title of the offense. 5 This is important, especially for clients that maybe enhanced to higher criminal charges or new allegations after being released on bond. Some clients may believe that their new charges are covered by the original contract. The attorney always has the option to incorporate any new charges the client incurs, additional charges stemming from the same incident, or an upgrade in the level of offense into a new contract encompassing these changes. If executing a new contract, describing all the cases to be covered, incorporating a merger clause, and stating the new fee agreement is recommended. DISCLAIMER It should be conveyed to the Client that the court system is adversarial, and no promises or guarantees can be made about any particular outcome. In the case of the example contract, this is accomplished by informing the Client that, “We cannot guarantee any expected outcome or conclusion due to numerous and complicated factors which are beyond our control.” FEE AGREEMENT The Fee Agreement section will usually make up the bulk of the contract and will contain much more specific language than other areas of the contract. This is necessary to ensure that the Client fully understands how much they are paying in the fee, how that fee is earned, and avoid any disputes over either of those aspects in the future. Attorneys have a lot of latitude in how their fees are structured. The American Bar Association’s Model Code of Professional Responsibility provides guidelines for determining a reasonable fee. 6 While the ABA has focused on the reasonableness of the fee, the mechanism of how that fee is collected has been largely left up to the individual attorney. This contract states that the fee contemplates the attorney’s investigation into the facts and laws pertaining to this case and attempts at resolving the case without the necessity of a trial. How an attorney structures their fee is up to the attorney. Whether the fee be flat, hourly, or contingent, this should be clearly stated in the Fee Agreement clause. The example contract incorporates a fixed or flat fee structure. This contract specifically sets forth for the client how the legal fee is earned. In this particular agreement 50% of the total fee is earned at the signing of the contract and communication with the attorney for the government. This communication can include filing a Notice of Appearance with the Court and prosecutor’s office or even a phone call or email to the attorney. Another 25% of the total fee is earned upon the first court appearance. The final 25% of the fee is earned when the prosecution’s offer is either accepted or rejected by the client. If the Client accepts the offer from the prosecution, the case is disposed and the entire fee is earned. If the Client rejects the prosecution’s offer, the case will proceed to trial. 7 In any case, 100% of the fee will be earned upon a dismissal or rejection of the allegations against the Client. While the attorney is free to negotiate any reasonable fee arrangement within the bounds of ethics and the law, a policy of at least one half the fee is the best recommended practice. Should the attorney negotiate for some other fee arrangement such as barter or trade, each item should be expressly listed with a reasonable descriptor such as make, model, serial number, condition, and assigned a value agreed

Tex. Disciplinary R. Prof. Conduct, Rule 1.06 It is also recommended that the level of offense be included in the case description. Driving While Intoxicated can take on several levels of offense depending on the circumstances of the case. 6 Model Code of Professional Responsibility DR 2-106 (1981). 7 Trial fees are not included in the original contract. 4 5

to by the attorney and the Client. 8 This will avoid confusion later should the attorney withdraw or be discharged by the Client. In that instance the contract should include the mechanism for returning any unearned fee in the item. 9 TRIAL FEE The Trial Fee clause expressly informs the client that should the Client fail to accept the plea bargain of the District Attorney’s Office and the Client’s case is set for trial, the Client will be required to pay an additional advanced fee for trial and trial preparation which will be determined based upon the type of trial the Client requests. This is to clearly and expressly let the Client know that this contract does not include a trial fee. Again, the attorney is free to negotiate the method in which they collect any reasonable fee. However, due to the time and attention required to prepare for a trial it is recommended that the trial fee be paid in full 30 days after the case is placed on the court’s trial docket. The example contract here outlines how the trial fee is earned. 50% of the trail fee is earned upon the date that the case reaches its first reset on the trial docket. The other 50% of the fee is earned upon commencement of the trial. The contract goes onto define what constitutes commencement of the trial; start of jury selection, swearing of the first witness, or the start of argument in motions preceding trail. This section also explains that appeals and retrials are not included in the trial fee. The trial fee should be detailed in a separate contract. ADMINISTRATIVE DRIVER’S LICENSE SUSPENSION Unique to the criminal charge of DWI is that a driver’s license suspension proceeding can accompany it. In the example DWI contract here, the quoted fee includes the driver’s license suspension hearing. However, the contract expressly states that any appeals of the administrative law judge’s decision are not included in the quoted fee. EXPENSES The expenses clause simply informs the Client of additional expenses that are not covered by the contract. These additional expenses can cover everything from fax, copies, travel expenses, and postage to lodging, fines, polygraph, and medical examinations. It is up to the individual attorney to decide what expenses are covered by the fee and which ones the client will be billed directly to Client. The list does not have to be exhaustive, but robust enough to include reasonably expected expenses, and when available the cost of those expenses up front. POWER OF ATTORNEY The Power of Attorney clause is the heart of the employment contract for legal services. This clause should state simply that the Client authorizes and empowers the attorney to take the reasonably necessary steps to resolve the case. This allows the attorney to negotiate with the state on behalf of the Client. FEES NOT COVERED This section expressly covers fees that are not covered by this contract that the client may incur. These fees can include: motions subsequent to the entry of a plea in the case; motions to adjudicate, revoke, or modify probation conditions; petitions for expunction or non-disclosure; appeals or retrials of the case; Even if the item is kept as collateral, it should be expressly itemized, sufficiently described, and given an agreed value. 9 The contract should include whether the Client is returned the item or the monetary equivalent of the unearned fee. 8

or any other proceeding, motion or action not specifically identified by or covered by this contract. It is up to the individual attorney to include or exclude any of these services in the original contract. However, whether an attorney wishes to include or exclude any service covered by the contract, it should be explained explicitly in writing to the Client. If these services are specifically excluded, it is recommended that a separate contract be drawn up for those services. OCCUPATIONAL DRIVER’S LICENSE Because of the potential of a driver’s license suspension hearing with a DWI charge, this contract also has a provision that covers the Occupational Driver’s License hearing. This section advises the client that they have the option to obtain an Occupational Driver’s License after a suspension decision by the SOAH. The Occupational Driver’s License fee is not included in the original contract. The Occupational Driver’s License should be a in a separate contract or be made as an amendment to the original contact. CONCLUSION It is important for an attorney to have a contract for employment that expressly and plainly sets out exactly what the client is hiring the attorney for and contain sufficient language to protect both the attorney and client from any confusion or misinterpretation. This language does not necessarily need to be legally formalistic but does need to be specific enough to preclude differing interpretations.

200 SOUTH TENTH STREET RICHMOND, TX 77469

TEL: (713) 774-2800 FAX : (713) 774-2808

ATTORNEY-CLIENT COMMUNICATION: THIS DOCUMENT AND ITS CONTENTS CONSTITUTE LEGALLY PRIVILEGED INFORMATION January 7, 2022 Pappy Van Winkle 123 Weller Way Buffalo Trace, TX RE: EMPLOYMENT CONTRACT FOR LEGAL SERVICES IN STATE OF TEXAS VS. PAPPY VAN WINKLE Dear Mr. Van Winkle: This letter is to describe the terms and conditions under which Arrington, Tu & Burnett, hereafter referred to as the Firm, is offering to represent Pappy Van Winkle hereafter referred to as Client, in connection with the following: •

Arrest of Pappy Van Winkle for the alleged offense of Driving While Intoxicated >.15 BAC in Weller County, Texas, Cause # 21-CCR-123456.

•

Suspension of Pappy Van Winkle’s Driver License because of the arrest or refusal to provide breath/blood sample on or about July 4, 2021.

This letter is a legal contract, and the terms and conditions of our agreement are described in some detail. This letter not only establishes the terms of our contract with you, but it will also help to prevent any misunderstandings. When you sign and return a copy of this letter, you are agreeing to the terms and conditions of representation which are described in this letter. We cannot guarantee any expected outcome or conclusion due to numerous and complicated factors which are beyond our control. We make no express warranties concerning this transaction, and hereby expressly disclaim any implied warranties concerning it. It is expressly understood and agreed that no other representations have been made to you except those set out in this letter. Client agrees to keep our office apprised of your home and cellular phone numbers and email address so that we can communicate with you during the day or evening hours. You agree to

promptly inform us of all changes in your contact information as soon as such changes occur. You agree to attend all court dates, court hearing, and other official appearances in connection with this matter. You further agree to immediately inform the Firm of any event that will prevent you from attending scheduled court dates or appearances. The Firm will represent Client by investigating the law and facts, by preparing for all hearings, negotiating with attorney for the Government, and preparing for trial if necessary. If the matter requires negotiation, the Firm will negotiate with the prosecutor's office on your behalf. We will not accept a plea bargain without your approval. Do not communicate with any of the alleged victims, witnesses or attorneys in the case without our involvement. The Firm and Client have agreed upon a fee of $100,000 for the representation of Pappy Van Winkle for the alleged offense of Driving While Intoxicated. Client understands that the funds shall be deposited into the Firm’s trust account. 50% of the total fee will be moved into the Firm’s operating account upon signing this contract and the Firm’s first communication with the attorney for the government. An additional 25% of the fee will be moved into the Firm operating account upon the first court appearance, and the final 25% of the total fee will be earned and moved onto the operating account upon Client either accepting or reject the prosecutor’s final offer. 100% of the fee is earned by the Firm upon dismissal, rejection or No Bill of the allegations against Client. If the final offer is reject and the court set a trial date, then 100% of the trial fee is to be paid and deposited into the Firm’s operating account after filing of any pre-trial motions or 30 days from the date the case is set for trial, whichever comes first. Trial Fees are earned as follows; (1) 50% upon the date that the case is reset for Trial not the actual Trial date. (2) 50% upon commencement of the trial such as start of jury selection, swearing of the first witness or the start of argument of counsel in motion settings (This does not include appeals or retrials which require additional advance fees.) The attached Exhibit "A" shows those items which are specifically included in, and those items which are specifically excluded from, the flat fee agreement. If this contract is terminated by either party for any reason, then a rate of $350.00 per hour shall be calculated for all work perform from the acceptance date to the termination date of the contract. The attorney shall provide an invoice of all work performed within 60 days of the termination of the contract. The attorney's fees do not include photocopying charges, long distance telephone charges, travel expenses, fees for investigators and experts, witness fees, costs of preparing a reporter's record, or other court costs. These costs will be treated as additional expenses and will be included in our bill. You agree to pay those reasonable expenses. If payments are not made promptly to us as requested, we reserve the right to immediately withdraw from representing you in any and all matters that the law firm is handling. You agree to the withdrawal.

This Agreement is performable in Fort Bend County, Texas. All monies owed hereunder are to be paid at our office in Fort Bend County, Texas. Jurisdiction and venue of any dispute arising hereunder are also performable in Fort Bend County, Texas. Should it become necessary for the firm to collect any unpaid balance or debt owed to the firm in connection with this case, you agree to pay any additional fees associated with the collection, including but not limited to employment of an outside collection agency, attorney’s fees and court cost. You authorize us with your power of attorney to sign court or other legal documents which may be required in the course of the case. Also, you also will designate the Firm as your attorneyat-law and in-fact to act in your name, sign legal pleadings on your behalf and to perform the acts necessary and appropriate to affect the above described legal representation. Please sign in the space provided below so that we may begin working on your behalf. If you have any questions concerning our fees or this legal matter, please call me at (713) 774-2800. SIGNED on this

day of April 2021.

Pappy Van Winkle

SIGNED on this

day of April 2021.

Paul F. Tu Arrington, Tu & Burnett 19901 Southwest Sugar Land, Texas 77479 (713) 774-2800 tel (713) 774-2808 fax Texas Bar No. 24045197

ATTORNEY-CLIENT COMMUNICATION: THIS DOCUMENT AND ITS CONTENTS CONSTITUTE LEGALLY PRIVILEGED INFORMATION EXHIBIT "A" Items Included in a Flat Fee Arrangement: •

Preparation, investigation, negotiation, and representation of Pappy Van Winkle for the alleged offense of Driving While Intoxicated >.15 BAC in Weller County, Texas, Cause # 21-CCR-123456.

•

Preparation, investigation, negotiation, and representation of Pappy Van Winkle’s suspension of driver license because of the arrest or refusal to provide breath/blood sample on or about July 4, 2021.

Items Not Included in a Flat Fee:  Any Bench/Jury trial, Post-trial motions, appeals, motion for early termination, or petitions for non-disclosures.  Any Petition for Occupational Driver License  The firm has agreed to a jury trial fee of $6,000 to $12,000. SIGNED on this

day of December 2021.

Pappy Van Winkle SIGNED on this

day of December 2021.

Paul F. Tu Arrington, Tu & Burnett 19901 Southwest Sugar Land, Texas 77479 (713) 774-2800 tel (713) 774-2808 fax Texas Bar No. 24045197

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership. Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

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I would like to designate this donation for use on these specific funds: CHARLES BUTTS Law Student Scholarship in the amount of $_________ Financial CLE SCHOLARSHIPS $___________ For the COMANCHE CLUB in the amount of $_________

F or CHRISTINE S. CHENG MD MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________

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