14th Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar in Denton

14th Annual

Jolly Roger

Hal Jackson Memorial Criminal Law Seminar Course Directors: Hayley Brown & Patty Tress December 10, 2021 Denton, Texas

14TH ANNUAL JOLLY ROGER HAL JACKSON MEMORIAL CRIMINAL LAW SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

December 10, 2021 Denton, Texas | SpringHill Suites Denton, 1434 Centre Place Dr., Denton, TX 76205 Hayley Brown and Patty Tress 6.0 Ethics: 1.0

Friday, December, 10 2021 Time

CLE

Daily CLE Hours: 6.0

Topic

Ethics: 1.0

Speaker

7:30 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Hayley Brown and Patty Tress

8:30 am

1.0

Kick-Off & Red Zone | Open and Closing Arguments

Cris Estrada

9:30 am

1.0

Special Teams | Experts & Witnesses

Sarah Roland

10:30 am 10:45 am

Break 1.0

11:45 am 12:00 pm

Kameron Johnson

Lunch Line 1.0

1:00 pm 1:15 pm

Scrimmaging | Pre-Trial Investigations

Lunch Presentation: Keep Your Head in Game | Mental Health

John Fritz

Break 1.0

2:15 pm

Instant Replay | Technology in the Courtroom

Clifford Duke

Break

2:30 pm

1.0

Scouting | Voir Dire

Jeep Darnell

3:30 pm

1.0

Rules of the Game/Penalties | Client Relationships & Communications

Anne Burnham

Ethics 4:30 pm

Adjourn

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

Texas Criminal Defense Lawyers Association

14TH Annual Jolly Roger Hal Jackson Memorial Criminal Law Seminar Table of Contents

-Speaker

Topic December 10, 2021

Cris Estrada Sarah Roland Kameron Johnson John Fritz

Kick-Off & Red Zone | Open and Closing Arguments Special Teams | Experts & Witnesses Scrimmaging | Pre-Trial Investigations Lunch Presentation: Keep Your Head in Game | Mental Health

Clifford Duke

Instant Replay | Technology in the Courtroom

Jeep Darnell

Scouting | Voir Dire

Anne Burnham

Rules of the Game/Penalties | Client Relationships & Communications

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 December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

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

Speaker:

Cris Estrada

310 N Mesa St Ste 212 El Paso, TX 79901-1301 ((915) 867-8788 phone cestrada@jdarnell.com

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

Kick-Off & Red Zone

TCDLA Game Day How to Start and end the trial on a positive note October 1, 2021 El Paso, Texas

Cris Estrada Cestrada@jdarnell.com Jim Darnell P.C. 310 N. Mesa, Suite 212 El Paso, Texas 79901 Phone: (915) 532-2442 Fax: (915) 532-4549

Opening Statements – Kick-Off In football, nothing sets the tone quite like the opening kickoff. The energy of the stadium, the screaming fans, the bright lights, twenty-two men on the field…the blowing of the whistle and finally the kick. The game has started.

As we all know the trial isn’t much different, there is an energy in the courtroom, but it’s quiet, the bright lights of the fluorescent light bulbs, two individuals in the well and 12 jurors in the box…. the judge motions to the DA and opening statements. The trial has started.

I.

Getting Started – The Fundamentals

Opening statements are one of the most important parts of any trial. Finally, our moment to tell jurors our story and why they will find our client Not Guilty at the end of the trial. Our opening statement is the first real opportunity to speak to the jury about our case. The first real opportunity to establish credibility and a connection with the jury. From the beginning of voir dire most jurors will think they have a general idea about the case based on our client and the issues discussed. The jury is waiting to hear the facts, waiting to hear the story, waiting to find out why they are forced to be here. Our opening statement sets the tone for the rest of the trial, it sets the backdrop, the story, the theme. The State gets to go first, but then it is our time to begin to win over the jury.

In every case, as in every story there will be different characters, different crimes, and different issues. In our opening statement we have to provide the jury with our “story” with our theme. We need to begin to provide the framework or “playbook” for what they will hear and see during the trial. As part of our theme, we need to communicate to the jury how all the information we will be presenting to them will fit together. In simple terms we have to begin to describe what the puzzle pieces will reveal in the end. (While this is a common cliché with the district attorney’s office, it is a very simple description of what we are trying to describe to the jury). This part of the trial lays out the roadmap of the case, to act as a guide for the jurors to follow. When the testimony begins, jurors will be able to fill in the gaps with the details to get the full picture by the end of the trial.

II.

The Playbook – Story/Theme

The best advice we have all received in school and from our mentors is to tell a story or set our theme with the opening statement. It is our job to provide an interesting story or theme that captures

the interest of the jury. Our brains process information better if it comes in the form of a story and it is easier to relate to if explained as a theme. It is easier for people to understand and recall information if it is told in a story/theme format. If we want the jurors to recall anything, we want them to remember our story and how the evidence comes together within that story.

There are different ways to present a story, and it should be tailored to the case. Some cases involve factual disputes (he said/she said), and others are heavy on legal issues. Ultimately, our jury and our case will dictate the story we tell. The story needs to explain where we are going, who the characters are, and what will happen, using simple terms and it must be easy to follow. To keep the jury engaged present big picture facts, and evidence, akin to the “puzzle pieces” that they must put together later. Ultimately, that is what we are doing, giving them the pieces that they need to work with. If we make those pieces hard to connect, then there won’t be a finished puzzle for us at the end. a. Keep it simple The use of themes and a roadmap makes opening statements easier to tell and understand. My mentors have always told me that opening statements need to be explained to the jury as if they were children. We need to walk the jury through the story using simple terms, making sure every step along the story is explained. Additionally, it is important at the beginning not to get too caught up in the details. We are presenting a roadmap of the case in opening statements, not arguing the entire case.

Make the story as easy to follow for the jury. By simplifying the information we give the jury, the story itself becomes the important part to remember instead of the names, or small details. Let the jury focus on the facts. Always remember to use layperson terms and descriptive language to create memorable mental images for our story. b. Rule of Three A simple way to tell a story in a way that can easily be remembered is by using the “Rule of Three.” I was always taught to use the “rule of three” as it makes it easier to tell a story, to emphasize important parts of that story and for people to remember. It’s no coincidence that most stories follow the rule of three. (The Three Little Pigs, The Three Musketeers, Goldilocks and the Three Bears). By using the rule of three, the jury can process information better, and create a pattern which can be more easily remembered. In order for the rule of three to be as effective as possible we need to continuously use our three important topics throughout or opening and eventually our closing arguments. The best use of the rule requires that we state our three topics (try to use visual aids), roadmap our use of the three

issues and loop back to them in our closing. By keeping our opening simple, clear and concise the jury can better understand the points we are trying to get across to them. Always close out your statements confidently and leave a clear message as to your position and why your client will get the verdict you want.

III.

The Law

The Code of Criminal Procedure Art. 36.01 lays out the order of proceedings in a trial. The Code lists what is expected from the State’s attorney in an opening statement: “The State’s attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.”

It is not required that the State make an opening statement, and if they choose to waive it, the defense cannot give theirs at that time either. (Waiving the opening statement might be a strategy prosecutors employ to keep the jury from hearing the defendant’s side of the story before testimony begins.)

Whether to deliver an opening statement is entirely optional. Darkins v. State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd); Although why anyone would waive completely is beyond me.

In a criminal case, the opening statement is an outline of the facts which the State in good faith expects to prove. Parra v. State, 935 S.W.2d 862, 871 (Tex. App.-Texarkana 1996, pet. ref'd). Certainly, a prosecutor should not refer to evidence during opening statement that he knows cannot be proved.

Bomer v. State, 827 S.W.2d 65, 67 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd).

An opening statement in which the prosecutor engages in jury argument, rather than stating to the jury the nature of the accusations and the evidence that the prosecution expects to produce, is improper. See Hullaby v. State, 911 S.W.2d 921, 927-28 (Tex. App.—Fort Worth 1995). Broussard v.

State, No. 01-08-00574-CR, 2009 Tex. App. LEXIS 1480, at *8 (Tex. App.—Houston [1st Dist.] Mar. 5, 2009).

Closing Arguments – The Red Zone Our closing argument is a strong, persuasive, close to our theme and story that began in our opening statements and was developed throughout the trial. The metaphorical goal line offense to get into the endzone. Closing arguments is the time to reiterate the theme which we have been developing and

using during the entire trial and make sure the jurors understand it. It is the time to use our story and our theme to rebut the State’s story of events and reenforce ours and the time to loop back and engrain the rule if you have been using it.

IV.

Back to the Fundamentals

Now that the testimony is complete the jury has the information it needs, the “puzzle pieces” of information that make up our story and theme. Closing arguments is the time for us to follow up on our theme and bring our story to a close. This is when we walk the jury back through our roadmap, showing them that they now have all of the puzzle pieces. They now have the details that fill in those gaps from our opening statement.

V.

The Playbook

Our interesting story now has all the details we couldn’t give the jury during opening statements.

We can now reiterate those important facts and details of our story, making sure the jury recalls the most important information that is beneficial to our case. We don’t have to spend time and shouldn’t spend time on every detail, but we must highlight and make memorable the most important and beneficial information. To make our closing arguments as effective as possible make sure to discuss: 1) the Burden of Proof - the jury hasn’t heard much about the burden since voir dire, so make sure they understand reasonable doubt. While we can’t define it for them, we can explain that it is more than clear and convincing, more than preponderance of the evidence, it is the highest standard of proof.

2) Discuss the Evidence – explain the important pieces of evidence in your story/theme; why they were important; talk about witness credibility; Apply evidence to your story/theme and if you took advantage of the law of threes continue to hammer it into the jury’s mind.

3) Attack the State’s case – attack their weak points to make them explain that issue; if there are weaknesses in your case – try to mitigate damage 4) Jury Instructions – While they will be explained by the judge, if there are more complex issues you want to make sure they understand, go over it with them.

5) Verdict Form – Tell them how we want them to fill it out VI.

The Law

"It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper." Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Thus, proper jury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Id.; Guidry v. State, 9 S.W.3d 133,

154 (Tex. Crim. App.1999). "The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney." Alejandro, 493 S.W.2d at 231.

Consequently, error exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988).

A. Arguing Outside the Record It has long been established that a prosecutor cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). Arguments referencing matters that are not in evidence and may not be inferred from the evidence are usually "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Argument inviting speculation is of grave concern: Argument injecting matters not in the record is clearly improper; but argument inviting speculation is even more dangerous because it leaves to the imagination of each juror whatever extraneous 'facts' may be needed to support a conviction. Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002) B. Commenting on Defendant’s lack of remorse The Court if Criminal Appeals has held that a prosecutor's comment on a defendant's failure to show remorse is tantamount to a comment on his failure to testify. Davis v. State, 782 S.W.2d 211, 222 (Tex. Cr. App. 1989) (citing Dickinson v. State, 685 S.W.2d 320, 324 (Tex. Cr. App.1984)), cert. denied, 495 U.S. 940, 109 L. Ed. 2d 520, 110 S. Ct. 2193 (1990). However, if there is evidence in the record supporting the comment, then no error is shown. 4 Id. (citing Fearance v. State, 771 S.W.2d 486, 514 (Tex. Cr. App. 1988)). But beware, in this case, a witness testified that the appellant told him he had no remorse. The prosecutor's argument was therefore a proper summation of the evidence. Howard v. State, 153 S.W.3d 382, 385-86 (Tex. Crim. App. 2004) C. Striking at the Defendant over counsel’s shoulder The State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith or insincerity during argument. Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). Uninvited and unsubstantiated accusations of misconduct directed at a defendant's attorney are manifestly improper because they serve to inflame the minds of the jury to the defendant's prejudice. McMurrough v. State,

995 S.W.2d 944, 947 (Tex. App.--Fort Worth 1999, no pet.). A prosecutor runs a risk of improperly striking a defendant over the shoulder of counsel when the argument personally impugns opposing counsel's character. Mosley, 983 S.W.2d at 259. It is manifestly improper and prejudicial to the defendant for a prosecutor to contrast the ethical obligations of prosecutors with those of defense attorneys. Id. at 258. Harris v. State, 122 S.W.3d 871, 886 (Tex. App.—Fort Worth 2003) D. Preserving Error To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling his objections to jury argument. In Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004), the Court of Criminal Appeals said that usual sequence is objection, instruction to disregard, and motion for mistrial, but that sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. . .. Similarly, the request for an instruction that the jury disregard an objectionable occurrence is essential only when the such an [sic] instruction could have had the desired effect, which is to enable the continuation of the trial by a [sic] impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).

You have everything you need to win your case, from kickoff to redzone you know the fundamentals, you have the playbook, and most importantly you know the law. Go out there and score!

I hope everyone has stayed healthy during these times and I can’t wait to see you all in person at the courthouse again!

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

Topic: Special Teams | Experts & Witnesses

Speaker:

Sarah Roland 903 N Elm St Ste 101 Denton, TX 76201-6926 (940) 323-9305 phone (940) 312-6830 fax sarah@sarahroland.com www.sarahroland.com

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

______________________________

Special Teams: Experts & Other Witnesses ______________________________ Texas Criminal Defense Lawyers Association Getting Game Day Ready CDLP 2021-2022 Sarah Roland 903 N. Elm Street Denton, Texas 76201 (940) 323-9305 sarah@sarahroland.com sarahroland.com

“He falls, and is lame; he coughs, he has a stitch in his side, he has a fever and chills: when he is hungry, he cannot always kill and eat a bear;—chances of war,— sometimes the bear eats him.”

Farming 1870 Ralph Waldo Emerson The Stranger: “Sometimes you eat the bear, and sometimes, well, he eats you.”

The Big Lebowski 1998

Introduction Preparation – and luck – is the key to success in a trial – to avoid being eaten by the bear. The best lawyers in the courtroom are the lawyers who have prepared the most – the ones who have a mastery of the facts of their case and the law and really know their client and the witnesses in the case. Preparation is also the thing allows the lawyer to capitalize on those little breaks that inevitably only happen after the announcement of “ready.” Being ready for any witness that may take the stand is part of good preparation. This paper concentrates on preparation for two unique categories of witnesses: experts and snitches.

Experts 1. How do I find a good expert?

Ask around. TCDLA is a valuable resource for finding experts. Always do your homework on a potential new expert, though. Ask other lawyers who have used the expert. Read books and articles. Search online and use advanced google search or other advanced search engines. Contact the authors of the articles or books. You’d be surprised how willing many of them are to talk about their subject matter. Visit your

local medical school library. Ask other experts you have used before for referrals. Ask your investigator. Typically, experts are more than happy to help advance their area of expertise.

2. What’s the difference between a consulting expert and a testifying expert?

Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the leading case on the distinction between consulting and testifying experts. The difference is major, and it matters.

Everyone should read Pope.

The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, 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. Id. “If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the subject matter on which he will testify.” Pope v. State, supra.

3. What if my court appointed client doesn’t have any money to hire an expert, and we need one?

Ask the court for money. Do not be timid to ask for the money necessary to defend the case. Always make the requests ex parte and sealed and always include it in the record. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). The State cannot get a copy of your ex parte sealed request for expert assistance, nor can the State be at any hearing for requested assistance. Also, there is no canned request for expert assistance. Each request should be appropriately tailored to the specific facts of the case.

The authority for requesting necessary expert (investigative and/or mental health) assistance comes directly from the Code of Criminal Procedure, case law, the State Bar Guidelines, and the American Bar Association Guidelines for representation.

Article 26.05 and 26.052 of the Code of Criminal Procedure. Article 26.05(d) provides that in non-capital cases counsel: “shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.

Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Article 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).”

Article 26.052(f) indicates that: “[a]ppointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses.

The request for expenses must state: (1)

The type of investigation to be conducted; (2) Specific facts that suggest the investigation will result in admissible evidence; and (3) An itemized list of anticipated expenses for each investigation.”

Article 26.052(h) states that: “[t]he court shall grant the request for advance payment of expense in whole or in part if the request is reasonable.

If the court denies in whole or in part the request for expenses, the court shall: (1) State the reasons for denial in writing; (2) Attach the denial to confidential request; and (3) Submit the request denial as a sealed exhibit to record.

the the and the

Article 26.052(h) provides that: “[c]ounsel may incur expenses without prior approval of the court.

On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.”

Thus, the Code makes clear that it is permissible to hire experts without first obtaining court approval. It is arguably better to obtain prior court approval, though, for a few reasons. For starters, you will have an order in advance for payment. Also, if a correct, credible showing is made that the expert is necessary and the Court denies the request, there is already potential error built in the case.

Additionally, case law is well-established and clear that the trial court must provide sufficient funding for necessary defense expert assistance. The defense 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.” Id. The seminal case for expert assistance, of course, is Ake v. Oklahoma, 470 U.S. 68 (1985) which held that indigent defendants in criminal cases have a due process right to stateprovided expert assistance when an ex parte showing is made to the trial judge. Ake involved a psychiatric expert. However, according to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim.

App. 1995). If an indigent defendant establishes a substantial need for an expert,

without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id. Furthermore, on January 28, 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”).1 Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ ContentDisplay.cfm&ContentID=14703. “The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9 “Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate.

Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a. b.

1

The preparation of the defense; Adequate understanding of the prosecution’s case; c. Rebut the prosecution’s case or provide evidence to establish an available defense; d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”

There are updated performance guidelines forthcoming.

Additionally, Guideline 7.1, C.3 provides the following: “Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).”

4. What if I run out of money from the court for my expert?

We have all been in situations like this – where, for example, we ask for $2,500 for expert assistance, and the court authorizes $500 in funds. Ask for more money. Ask even after you’ve been told no or given insufficient funds. Keep asking. Do another ex parte, sealed motion. Do not use your same motion from before. Make this a second request. (Then when you get another $500 and use it, make a third request, and so on.)

Outline for the court that the previously allocated funds have been depleted, how they were depleted, that more work needs to be done, that you have no expertise in the field, what that specific work entails, and more money is necessary to perform the additional work.

Hinton v. Alabama, 134 S.Ct. 1081 (2014), is an ineffective assistance of counsel case based on the lawyer’s failure to obtain sufficient funding for a qualified expert who was necessary to rebut the State’s case.

Hinton was a death penalty case. The physical evidence consisted solely of a revolver and six bullets. The State's case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from the Hinton revolver. Id. at 1084. Recognizing that Hinton's defense called for an effective rebuttal of the State's expert witnesses, Hinton's attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000 with this statement:

"`I don't know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I'm granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate form and I'll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this and if it's necessary that we go beyond that then I may check to see if we can, but this one's granted.'" ___ So.2d ___, ___, 2006 WL 1125605, *59 (Ala.Crim.App., Apr. 28, 2006) (Cobb, J., dissenting) (quoting Tr. 10).

Hinton's attorney did not take the judge up on his invitation to file a request for more funding. Id. With the limited funding provided by the court, Hinton’s lawyer found a woefully underqualified expert who testified at trial. The United States Supreme Court ultimately held that “[t]he trial attorney's failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Id. at 1088.

5. What if I am retained and we need an expert but my client doesn’t have any more money?

The Court of Criminal Appeals answered this very question in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), a child death case. Quite simply, as retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). In Briggs, the Court of Criminal Appeals spelled out three options if your client cannot afford experts:

“ (1)Subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2)Withdraw from the case after proving to the judge your client’s indigence; or (3) Remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake.” Id. at 468.

Importantly, the Court of Criminal Appeals further recognized that: “If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant's cause of death, a privately retained attorney should be held to no lower standard.

As the Supreme Court has explained, "The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.. . . [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 468469 (internal citations omitted).

6. What do I need to give my expert?

Communication with your expert is key. Prior to obtaining funding or paying for expert assistance you will have already talked preliminarily with your expert. Begin to set expectations at that time.

Once the expert is officially hired or appointed, he or she becomes part of the defense team. Send an engagement letter to your expert so that the expert will know what is expected. Also, in the engagement letter, make sure the expert knows that he or she is part of the defense team and that all information the expert receives is privileged and confidential. Finally, let the expert know that he or she is being retained (at least initially) as a consulting expert. As a practice point, wait until the expert has done all the necessary work in the case before designating the expert as a testifying expert.

Make certain your expert has as much information as possible to form a credible and reliable opinion. The expert needs to know the worst facts of the case. Providing the expert a copy of the discovery that is provided to you by the State is a must. The expert must have a working knowledge of the facts of the case. Obviously, the type of expert dictates what information is necessary. For instance, a false confession expert needs to have reviewed in detail every statement the accused has made whether that be in writing or recorded. Likewise, in a case where psychological testimony about your client is anticipated, you do not want an MMPI conducted by your expert because this could result in a finding that your client is antisocial. The State will undoubtedly use this against your client at trial if your expert testifies. You do not want to put your expert, your client or yourself in the position where your expert learns about crucial information for the first time on cross-examination.

7. Do I have to provide notice to the State that I have an expert?

Yes, if notice is requested by the State or ordered by the trial court. If neither of those conditions precedent are met, then we are not obligated to provide such notice and should not do so. However, we should always request notification of experts in our Article 39.14 requests regardless of whether we think the State may have an expert. Be sure to request copies of the expert’s report, curriculum vitae, underlying facts or data relied upon, bench notes, diagrams, etc. Subpoena a copy of the expert’s entire file. It is often different than what the State may have provided.

Article 39.14(b) of the Texas Code of Criminal Procedure states, “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of evidence. Except as otherwise provided

by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”

8. Do I need to have my expert make a report?

Not necessarily. There is no requirement for a written report. In some cases, it is better to have a report and others it is not. There is no right or wrong answer for this question.

It just depends on the facts of the case.

The key to answering this question in your specific case is communication with your expert. Find out what the expert would include in the report before you request a report.

Ask your expert – after he/she has reviewed everything, met with the client, etc. – what the worst thing is about the case. We have to know the answer to the “worst” question so that we can address it at trial or plan a way around it, if possible. Also, that will normally dictate whether you want a written report or not.

9. Do I have to give the State a copy of my expert’s report?

No. Article 39.14 requires notice of the expert’s name and address. However, if your expert has prepared a solid report it may be a good strategic move to provide the report to the State and/or its expert right before trial as such would provide ample ammunition for cross examination.

10. Can I talk to the State’s expert?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed

or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large .” (emphasis

added). The medical examiner and State crime lab scientist also fall under the umbrella of having an obligation to the public at large so may be contacted. However, if the State’s expert doesn’t fall within this umbrella, then be sure to get permission to speak to the expert ahead of time.

Talk to the State’s expert every time. There is no reason not to talk to the State’s expert.

Remember it’s a time to gather information and share information only if it is necessary or helpful. Take someone with you when you talk to the State’s expert. You will be surprised what you learn. Remember, real scientists are advocates for the science not the side.

11. Should I request a hearing on the State’s expert prior to the expert’s testimony?

Yes. Rule 705(b) of the Texas Rules of Evidence provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may – or in a criminal case must – be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.” With exceptionally limited circumstances, we should be requesting hearings on every expert every time. Those limited circumstances are case, witness, and strategy dependent. The hearing is conducted to test the admissibility of the expert’s opinion, obtain discovery, ensure you have copies of everything the expert has used to form the opinion, to get a record of what the expert has to say, and gain knowledge about fruitful grounds for cross-examination.

Texas Rules of Evidence 104, 401, 402, and 702 provide the basic conditions precedent for expert testimony. See Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006). Rule 104 requires that “[t]he court must decide any preliminary question about whether a witness is qualified…” and that “[t]he court must conduct any hearing on a preliminary question so that the jury cannot hear it if…justice so requires.” Rules 401 and 402 render testimony admissible only if it “tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 702 permits expert testimony only “if the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Accordingly, expert testimony that would only serve to confuse the issue or evidence for the trier of fact should not be admitted. The expert should be able to clearly explain the scientific, technical, or other specialized knowledge in a manner that lay, non-experts, i.e. the jury or the judge, can understand, and it must in some way be relevant to the case.

According to the Court of Criminal Appeals, “[t]hese rules require a trial judge to make three separate inquiries all of which must be satisfied before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the factfinder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); see also Malone v. State, 163 S.W.3d 785 (Tex. App. – Texarkana 2005, pet. ref’d) and TRE 702. “These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Escamilla v.

State, 334 S.W.3d 263 (Tex. App. – San Antonio 2010, pet. ref’d).

Qualification There is not a tremendous amount of guidance on the qualification prong of the analysis. Daubert tells us that the inquiry regarding whether or not an expert qualifies is “a flexible one.” 509 U.S. 594 (1993). “It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness.” Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App. – Corpus Christi 1983, writ ref’d n.r.e.) While the proponent of the testimony has the burden of establishing the expert’s qualifications, the trial court has the responsibility to ensure that the experts truly have expertise concerning the actual subject about which they are offering an opinion. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). A degree alone is not enough to qualify a purported expert to give an opinion, as the case may be, on every conceivable medical question, legal question, or psychological question. Rosie v. State, 7 S.W.3d 225 (Tex. App. – Austin 1999, pet. ref’d).

“The inquiry must be into the actual qualification. That is, there must be a fit between the subject matter at issue and the expert’s familiarity therewith.” Broders, 924 S.W.2d at 153.

The proponent of scientific evidence must show, by clear and convincing proof, that the evidence is sufficiently reliable and relevant to assist the jury in understanding other evidence or in determining a fact issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim.

App. 1997) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

With nonscientific expert testimony involving technical or other specialized knowledge, experience, or training, the expert may testify if three criterion are met: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies on or utilizes the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled in part on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).

A list of nonexclusive Kelly factors for “hard science” that should be addressed with every expert during a qualification hearing is as follows: • The extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such community can be ascertained • The qualifications of the expert testifying • The existence of literature supporting or rejecting the underlying scientific theory or technique • The potential rate of error of the technique • The availability of other experts to test and evaluate the technique • The clarity with which the underlying scientific theory and technique can be explained to the court • The experience and skill of the person who applied the technique on the occasion in question Keep this checklist with you. Use it as your outline for your expert hearings. And, importantly, make certain that you physically inspect everything the expert brings with

them to court. Find out what the expert reviewed but didn’t bring. Make the expert list out everything that he/she reviewed prior to testifying in the case. There is typically always something significant that the expert hasn’t reviewed and/or been provided.

A trial judge’s gate keeping obligation under Rule 702 – to insure that the expert witness’s testimony rests upon a reliable foundation and is relevant to the task at hand applies to all expert testimony not just scientific expert testimony. Roise, 7 S.W.3d at 235-36 (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999)); see also Jackson v.

State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).” Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d). Before an expert may give an opinion in a case, three criteria must be met: (1) the witness must be competent and qualified to testify; (2) the subject must be one upon which the aid of an expert’s opinion will be of assistance to the jury; and (3) his testimony may not state a legal conclusion. Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989). To be admissible, expert testimony must assist the jury on a matter in which the jury is not qualified to intelligently determine the matter without the help of the expert. Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997).

The expert testimony, however, must aid – not supplant – the jury’s decision. Id. It is worthwhile to remind the trial court consistently of its gatekeeping function and that it shouldn’t operate as a rubber stamp. It is common knowledge that junk science is a leading cause of wrongful convictions. After all, “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under [FRE] 403 of the present rules exercises more control over experts than over lay witnesses.

Daubert, 509 U.S. 579, 592-93.; see also Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim.

App. 1994).

12. Do I need to have my expert testify at trial?

Not necessarily. Just because you have an expert and have even designated an expert doesn’t mean you have to call the expert. Sometimes you know going in that your expert will need to testify. Other times, it’s not so clear, and you must gauge whether it’s worth it – a judgment call. As with every witness there are points to be gained and points to lose. It’s always a question of whether the net will be positive. However, be sure to prepare your expert for the possibility that he/she may not actually testify depending on the ebb and flow of trial.

As a practice point, though, don’t promise or mention your expert in jury selection or in opening. On the other hand, if you promise expert testimony in opening be sure to deliver in order to maintain credibility with the jury. Also, always be on guard for any argument or question(s) that may (attempt to) shift the burden of proof or undermine the presumption of innocence as such seems to be a default argument from the State when the defense has an expert. Prepare the jury for any such attempt by the State in jury selection. Be sure to educate the jury on the presumption of innocence, get everyone on “team innocent,” and indoctrinate them to the “take a knee” philosophy – stop when you are ahead. Then, to bring it full circle, when it is time to rest confidently say, “Your honor, based on the law and the state of evidence we rest.”

13. Can an expert testify that the complainant was abused?

The court in United States v. Charley, 189 F.3d 1251 (10th Cir. 1999), gave an excellent breakdown of how courts have handled the issue of whether or not a doctor may testify that, in the doctor’s opinion, the child complainant was abused. In Charley, the doctor testified that, based solely upon the statements of the children to the doctor and to other people, the doctor concluded that the children had been abused. There was no physical evidence of sexual abuse found by the doctor. The court held that this testimony was inadmissible.

“Here, no reliability determination was made at all with respect to Dr. Ornelas’ unconditional opinion that D.J. and J.J. were sexually abused. As a practical matter, that issue might have been disposed of simply by sustaining the objection, on foundation grounds, to the question seeking to elicit Dr. Ornelas’s opinion. At that point, government counsel might have approached the subject in a more acceptable way, and if not, a bench conference could have ended the line of questioning. Or, the subject could have been explored and passed on prior to trial, in the sound discretion of the trial judge. See Kumho Tire, 119 S. Ct. at 1176. But, as it happened, nothing was adduced here which demonstrates that the testimony had an adequate foundation. The record does not disclose, for example, what data would support ruling out all causes except sexual abuse for the girls’ physical complaints, or to what degree Dr. Ornelas relied on her purely subjective views. Cf. id. at 1177. Indeed, Dr. Ornelas herself, as indicated above, ordered a work-up to determine if an anatomical problem (rather than sexual abuse, presumably) was causing the girls to wet the bed. III R. at 324-25. Thus, if Dr. Ornelas’s unqualified opinion was based on the girls’ medical history, there is insufficient support in this record for the district court’s decision to admit it. See Gier v.

Educational Serv. Unit No. 16, 845 F. Supp. 1342 (D. Neb. 1994) (conducting a reliability inquiry and determining that expert opinion testimony that sexual abuse in fact occurred

was, in that particular case, not reliable), aff’d, 66 F.3d 940 (8th Cir. 1995).” “On the other hand, if Dr. Ornelas’ opinion was largely based on crediting the girls’ account, whether disclosed to her or others, she was essentially vouching for their truthfulness.

In general, expert testimony which does nothing but vouch for the credibility of another witness encroaches upon the jury’s vital and exclusive function to make credibility determinations, and therefore does not “assist the trier of fact” as required by Rule 702.

See United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v.

Shay, 57 F.3d 126, 131 (1st Cir. 1995); Whitted, 11 F.3d at 785-86; Weinstein’s Federal Evidence § 702.03[5] (1998). Indeed, the government concedes that, in this case, testimony to the effect that D.J. and J.J. were ‘telling the truth . . . would be impermissible.’ Appellee’s Br. at 26. Most courts that have considered the issue have concluded that expert testimony, based on the statements of the alleged victim, that sexual abuse in fact occurred is inadmissible under Fed. R. Evid. 702 (or similar military or state evidentiary rules) because, in such cases, the expert offering the opinion is merely vouching for the credibility of the alleged victim. Thus, if Dr. Ornelas largely based her opinion on the statements of the girls, then under the foundation (or lack thereof) presented in this case, we consider it inadmissible. Therefore, regardless of whether Dr. Ornelas’s conclusion was based on the girls’ medical history or on their allegations of abuse, its admission was erroneous.”

14. Can an expert comment on truthfulness?

The short answer is no. This is a hard issue to determine or recognize in the middle of trial at times. If you think you should object, object. You can usually assume in a child abuse case that the State may have the expert do exactly that, though. Therefore, it is advisable to litigate this issue pretrial through a motion in limine. Remember, though, to object during trial because motions in limine do not preserve anything for appeal.

In Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child-complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.”

Pediatricians have been recognized as expert witnesses in sexual abuse cases, provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases, provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App. - Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App. – Dallas 1988, pet. ref’d).

15. How do I know what to ask my expert?

Communication with your expert is key. You must talk to your expert long before he or she testifies. Know what information you need to get out of your expert. Make sure your expert can adequately and clearly explain the scientific – whether hard or soft science – issues to you. Ask your expert questions. If you do not understand what the expert is telling you there is no way the jury will understand what the expert is saying.

In Ex parte Ard, No. AP-75,704 (Tex. Crim. App. 2009) (per curiam) (not designated for publication), an aggravated sexual assault of a child case, the Court of Criminal Appeals held that trial counsel’s performance was deficient in that counsel failed to adequately prepare and present expert testimony concerning memory implantation.

The applicant's defensive theory at trial was that the complainant’s accusations were a result of suggestion and coaching which tainted the complainant’s memory. Trial counsel even had an expert witness – psychologist – testify. However, the Court of Criminal Appeals noted: “Though Dr. Michael Gottlieb, an expert on the subject, was ready and able to explain how false memory may be implanted by repetitious suggestion, trial counsel failed to adequately elicit testimony from the doctor that the theory is the subject of many treatises and is widely accepted by the scientific community, to explain how

and why it can occur, and to enumerate those facts which, in his opinion, made the testimony of the alleged victim in the case suspect and unreliable. This failure on the attorney's part fell below any objective standard of reasonableness, and there is a reasonable probability that, but for it, the result of the trial would have been different. This court finds that the inadequate presentation of such evidence, crucial to Applicant's defense, was, under the standard of Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel. Considering the deficiencies in the presentation of Dr. Gottlieb's testimony, based on a comparison of his trial testimony and his writ hearing testimony, it is the opinion of this court that there can be no confidence in the outcome of the trial.” Id. …

Dr. Gottlieb's trial testimony before the jury differed markedly from his writ-hearing testimony, not only in scope but in substance as well. In general, Dr. Gottlieb's writ testimony was far more comprehensive than his trial testimony.

The differences between the two cannot be attributed to counsel's trial strategy.” Id.

The moral of the case then is communication with your expert such that allows you to elicit necessary defensive expert testimony. Clearly, the opinion indicates that Dr. Gottlieb provided testimony at trial and at the habeas hearing on the same subject.

Remember, the witness can only answer the questions that are asked. It is not enough to just have an expert witness. Be prepared to fully use the expert witness to the greatest extent possible.

16. Can an expert testify about diminished capacity due to mental illness or disease?

No. There is no diminished capacity defense in Texas. “The Texas Legislature has not enacted any affirmative defenses, other than insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008).

However, “such expert evidence might be relevant, reliable, and admissible to rebut proof of the defendant's mens rea.” Id. at 595. The leading case on this topic is Ruffin v.

State, 270 S.W.3d 586. Be sure to read, study and have this case on hand for any trial in which your client has a mental illness, disease, or defect that is just shy of insanity. In Ruffin, the Court of Criminal Appeals “repeat[ed] and reaffirm[ed] our holding in Jackson that ‘relevant 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.’” Id. at 596.

As a cautionary tale, the State will typically try to keep expert testimony about mental illness out if it falls short of insanity. This is obviously because the nature of this evidence tends to mitigate. Again, this is where it is key to have an open line of communication with your expert. Knowing there is no diminished capacity defense in Texas and that the State will inevitably try to limit the expert’s testimony, just means that you and your expert have to game plan and prepare proper questions in advance.

Confidential Informants, Jailhouse Informants, and Accomplices (a.k.a. Snitches, Rats) 1. Confidential Informants

While the snitch is usually someone the defendant knows or suspects, this is not always the case. Even if the accused believes he knows the identity of the snitch, it is incumbent upon the defense lawyer to file a motion to disclose the identity of the confidential informant. (Note: parrot the name used by law enforcement in your motion…that name is never “snitch”).

Law enforcement routinely misinforms their confidential informants/sources that the informant’s identity will be kept privileged in order to get the informant to play ball. However, a cursory look at Rule 508 of the Texas Rules of Evidence provides that such a privilege is indeed limited. In full, Rule 508 provides as follows: “(a)General Rule. The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if: (1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and (2) the information relates to or assists in the investigation. (b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the informer furnished the information. The court in a criminal case must reject the privilege claim if the state objects. (c) Exceptions.

(1) Voluntary Disclosure; Informer a Witness. This privilege does not apply if: (A) the informer’s identity or the informer’s interest in the communication’s subject matter has been disclosed—by a privilege holder or the informer’s own action—to a person

who would have cause to resent the communication; or (B) the informer appears as a witness for the public entity.

(2) Testimony About the Merits.

(A) Criminal Case. In a criminal case, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity: (i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate; or (ii) on its own motion, the court may dismiss the charges to which the testimony would relate.

(B) Certain Civil Cases. In a civil case in which the public entity is a party, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of a material issue on the merits.

If the court so finds and the public entity elects not to disclose the informer’s identity, the court may make any order that justice requires.

(C) Procedures. (i) If it appears that an informer may be able to give the testimony required to invoke this exception and the public entity claims the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether this exception is met.

The showing should ordinarily be made by affidavits, but the court may take testimony if

it finds the matter cannot be satisfactorily resolved by affidavits. (ii) No counsel or party may attend the in camera showing. (iii) If the informer’s identity is disclosed in camera, the court must seal and preserve for appeal the record of the in camera proceeding. The record of the in camera proceeding must not otherwise be revealed without the public entity’s consent.” (emphasis added). Clearly, the privilege is not absolute. And, like all privileges, the State can choose whether to exercise the privilege or not – meaning, the State is not required to keep the informant’s name confidential to begin with.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) the Supreme Court of the United States held that the identity of the informant (as you might expect, the Supreme Court prefers “confidential informant” to “snitch”) must be revealed where the informant: (1) participated in the offense; (2) was present at the time of the offense or arrest; (3) or is a material witness as to the culpable mental state of the defendant.

Think this over for a second: how many times do you think snitches in drug cases conduct hand-to-hands for police? Are present when the accused is arrested, or is present when the accused is (allegedly, of course) buying, cooking, or selling drugs; is negotiating drug transactions; etc.? This happens all the time.

In addition to Roviaro, Rule 508(c)(2) of the Texas Rules of Criminal Evidence provides that the identity of the informant must be revealed when “the informant

may be able to give testimony necessary to a fair determination of the issue of guilt, innocence.”

Rule 508’s mandate has been held to be broader than Roviaro. See Bodin v. State, 807 S.W.2d 313 (Tex.Cr.App.1991). So now we have four situations where the identity of the informant must be revealed; when the informant: (1) participated in the offense; or (2) was present at the time of the offense or arrest; or (3) is a material witness as to the culpable mental state of the defendant; or (4) may be able to give testimony necessary to a fair determination of the issue of guilt/innocence.

A few points are notable about the fourth exception.

First, note that the identity of the snitch must be revealed where the snitch may be able to give testimony as to guilt/innocence. There is no requirement that the defense be able to definitively prove that the snitch can absolutely give such testimony—only that the defense show it may be necessary. This makes sense: if the defense does not know what the informant would/would not be able to testify to, how could the defense definitively prove that the informant’s testimony would be absolutely necessary towards a fair determination of guilt or innocence? We couldn’t. And, that’s why the defense is only required to make a “plausible showing of how the informant’s information may be important.” Bodin, 807 S.W.2d at 318.

Second, note that for this exception, the snitch doesn’t have to have participated directly; be present at the time of the arrest or offense; or be a material witness to the

culpable mental state of the defendant. See Bodin, 807 S.W.2d, for example. In this way, it is broader than the three stated Supreme Court exceptions.

So, what happens if the Court determines that the Government does have to give up the name of the snitch? The State may elect whether or not it will disclose the informant’s identity—but there is a catch: if the State refuses to name the snitch, the Court must dismiss the charges upon motion of the defense.

So, it’s either give up the name of a snitch (who is likely snitching to work off their own charge(s)) who the police couldn’t, quite frankly, care less about, or give up the name of the snitch and nail a big(ger)-time drug player…which do you think the Government is inclined to do?

In addition to Rule 508 of the Rules of Evidence, the defense should always request the State to disclose the identity of the informant on relevant federal and state constitutional guarantees, too: right to present a defense rooted in the Due Process guarantees; right to effective assistance of counsel; and the right to compulsory process of witnesses.

It is also a good practice to request all information related to any informant in the initial request under Article 39.14 of the Code of Criminal Procedure.

2. The Jailhouse Rat, a.k.a. The Jailhouse Informant In 2009, the legislature added a requirement of corroboration to testimony often called jailhouse snitch testimony. Article 38.075 of the Code of Criminal Procedure provides:

“(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. (b)Corroboration is not sufficient for the purposes of this article if the corroboration only shows that offense was committed.”

Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that this testimony should be corroborated. Senate Comm. On Criminal Justice, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009). Article 38.075’s legislative history recognizes that “[t]he veracity of an in-custody informant’s statement can be highly suspect,” and that “[t]he testimony of [an] in-custody informant” should be corroborated by at least one other piece of evidence. Id.; See also, House Research Organization, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. 17 (2009) (“Supporters say [that] . . . because jailhouse informants have a strong incentive to fabricate confessions or incriminating evidence in exchange for lighter sentences or the goodwill of the criminal justice system, it is important to make sure that their testimony is corroborated by at least one additional piece of evidence.”). Consider that: the jailhouse informant is so inherently untrustworthy that the word of the jailhouse informant alone is without any evidentiary value; corroborating evidence is required.

At best, “jailhouse-witness testimony is inherently unreliable due to the inmate’s incentive to better his circumstances.” Phillips v. State, 463 S.W.3d 59, 66 (Tex. Crim.

App. 2015).

3. The Accomplice The definition of accomplice witness is one who is a “party” to the offense as defined in Sections 7.01 and 7.02 of the Penal Code. Section 7.01 provides: “(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. (b) Each party to an offense may be charged with commission of the offense.

(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

Similarly, Section 7.02 provides “(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

The accomplice witness rule is contained in Article 38.14 of the Code of Criminal Procedure: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

As noted by Dix and Schmolesky, “the rule is one of evidence sufficiency.” 43A Texas Practice: Criminal Practice and Procedure 51:66 (3d. 2011) (emphasis in original).

Admissibility of accomplice testimony is not addressed by Article 38.14. Id. (internal citations omitted). There is also, of course, no requirement of corroboration of accomplice testimony tending to exculpate the accused.

Regarding the accomplice witness rule, the Court of Criminal Appeals has observed:

“The underlying premise behind the accomplice witness rule is the idea that an accomplice witness is a ‘discredited witness’ and that the ‘testimony of an accomplice witness is to be carefully scrutinized not only because of any interest he or she might have, but because her or his testimony is evidence from a corrupt source.’”

Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989), quoting from Paulus v. State, 633 S.W.2d 827, 843 (Tex. Crim. App. 1981) (dissenting opinion on original submission adopted as majority opinion on rehearing). The same sentiment obviously applies to jailhouse snitches, see supra, too. Furthermore: “No matter how complete a case may be made out by an accomplice witness or witnesses, a conviction is not permitted unless he or they are corroborated.”

Walker v. State, 615 S.W.2d 728, 731 (Tex. Cr. App. 1981).

Accordingly, the Court of Criminal Appeals has determined there is only a single standard for determining the sufficiency of the corroborating evidence in the accomplice witness context. Id. at 51:98 (citing Munoz v. State, 853 S.W.2d 558, 559-60 (Tex. Crim. App. 1993)). The Court described the standard as follows: “The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating

character which tends to connect the defendant with the commission of the offense.”

Id. (citing Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988)). The critical question, then, in ascertaining the sufficiency of the non-accomplice witness evidence is whether that evidence tends to connect the defendant to the commission of the crime.

Such always involves a fact intensive analysis.

A witness is an accomplice witness within the meaning of the accomplice witness rule only if that witness is called by the State at trial. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:85 (3d. 2011). So, watch out: this means that if the defense calls an accomplice witness who provides some inculpatory testimony there need not be any corroboration of that testimony and the jury need not be instructed in accordance with Article 38.14.

Jury charge error is still a fertile area on appeal. This is especially true regarding charging the jury on accomplice witnesses. For purposes of the jury charge, an accomplice witness is either an accomplice as a matter of law or an accomplice as a matter of fact. Case law suggests that, as a general rule, this is the case only when uncontradicted evidence, or evidence so persuasive a jury could not reasonably disregard it, shows facts that unquestionably make the witness guilty of the crime, i.e., an accomplice. Undoubtedly, a witness is an accomplice as a matter of law if the witness is a codefendant or the witness’s own testimony acknowledges participation in the offense with which the defendant is charged. If the evidence clearly shows, that a

witness is an accomplice witness the court is under a duty to so instruct the jury. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:88 (3d. 2011).

If the evidence raises a question as to whether a state witness is an accomplice witness but does not establish that the witness is an accomplice as a matter of law – i.e., the witness is an accomplice as a matter of fact – the trial court errs in failing to submit the issue of the witness’s status to the jury. Harris v. State, 645 S.W.2d 447, 459 (Tex. Crim. App. 1983). Always request the trial court to instruct the jury that the witness is an accomplice as a matter of law. That request preserves the error for appeal. If a witness for the state is an accomplice as a matter of law, the trial court errs in submitting the witness’ status to the jury. Rather, it must instruct the jury that the witness is an accomplice as a matter of law and therefore, the jury must find that the state’s evidence provides corroboration in order to convict on the witness’s testimony. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:90 (3d. 2011).

Specifically, if an accomplice as a matter of law, the jury charge should identify the witness by name and inform the jury that the witness is an accomplice if an offense was committed.

The need for corroboration under the accomplice witness rule is independent of the need for the jury to evaluate the ultimate credibility of an accomplice witness.

An instruction that obscures this is a prohibited comment on the weight of the testimony of the accomplice witness. Dix and Schmolesky 43A Texas Practice: Criminal Practice and Procedure 51:93 (3d. 2011). A correct accomplice witness instruction

generally first informs the jurors that they must find the accomplice’s testimony to be true and to show the accused’s guilt. Only if and when they reach those conclusions, instructions generally continue, are the jurors to address whether corroboration has been presented. Id. citing Campbell v. State, 57 Tex. Crim. 301, 123 S.W. 583, 584 (1909) (opinion on motion for rehearing) (approving “as a correct charge” an instruction that so provides); see also Farris v. State, 819 S.W.2d 490, 507 (Tex. Crim. App. 1990); Holladay v. State, 709 S.W.2d 194, 202 (Tex. Crim. App. 1986).

Jury charge issues about accomplices are confusing. Bottom line: if in doubt about whether the charge is correct, object! This creates a jury charge issue on appeal where a showing of only some harm is required.

Conclusion Being prepared for and correctly handling expert witnesses and snitches significantly increases the likelihood of success in trial. May you eat the bear.

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

Topic: Scrimmaging | Pre-Trial Investigations

Speaker:

Kameron Johnson

700 Lavaca St. LL3 Austin, TX 78701 (512) 854-4128 phone (512) 854-4148 fax kameron.johnson@traviscountytx.gov

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

GETTING GAME DAY READY COLLEGE STATION, TEXAS OCTOBER 29, 2021 INVESTIGATIONS

KAMERON D. JOHNSON TRAVIS COUNTY JUVENILE PUBLIC DEFENDER 2201 POST ROAD, SUITE 200 AUSTIN, TEXAS 78704 OFFICE 512.854.4128 | FACSIMILE 512.854.4148 EMAIL: kameron.johnson@traviscountytx.gov

During a ten day period in September, 1976, Mr. Washington planned committed and multiple crimes which included “three brutal stabbing murders, torture, kidnaping, severe assaults, attempted murders, attempted extortion, and theft.” Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). After his two accomplices were arrested, respondent surrendered to police and voluntarily gave a lengthy statement confessing to the criminal episodes. Mr. Washington was appointed an experienced criminal lawyer to represent him however against counsel’s advice he waived jury and pled guilty to the court. Defense counsel actively pursued pretrial motions and discovery.

However, after he experienced a “sense of hopelessness about the case.” By the date set for trial, respondent was subject to indictment for three counts of first-degree murder and multiple counts of robbery, kidnaping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Respondent waived his right to a jury trial, again acting against counsel's advice, and pleaded guilty to all charges, including the three capital murder charges. Id. In the plea colloquy, the defendant told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record, and that, at the time of his criminal spree, he was under extreme stress caused by his inability to support his family. Counsel advised respondent to invoke his right under Florida law to an advisory jury at his capital sentencing hearing. Respondent rejected the advice and waived the right. He chose instead to be sentenced by the trial judge without a jury recommendation. In preparing for the sentencing hearing, counsel conducted a limited investigation and made the decision not to present evidence during sentencing instead relying on the defendant’s plea.

That decision reflected trial counsel's sense of hopelessness about overcoming the evidentiary effect of respondent's confessions to the gruesome crimes. Counsel did argue that the defendant had no history of criminal activity, and that he committed the crimes under extreme mental or emotional disturbance, thus coming within the statutory list of mitigating circumstances. He further argued that respondent should be spared death because he had surrendered, confessed, and offered to testify against a codefendant, and because respondent was fundamentally a good person who had briefly gone badly wrong in extremely stressful circumstances. The State put on evidence and witnesses largely for

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the purpose of describing the details of the crimes. Counsel did not cross-examine the medical experts who testified about the manner of death of respondent's victims.

The trial judge found several aggravating circumstances with respect to each of the three murders. He found that all three murders were especially heinous, atrocious, and cruel, all involving repeated stabbings. All three murders were committed in the course of at least one other dangerous and violent felony, and since all involved robbery, the murders were for pecuniary gain. All three murders were committed to avoid arrest for the accompanying crimes and to hinder law enforcement. In the course of one of the murders, respondent knowingly subjected numerous persons to a grave risk of death by deliberately stabbing and shooting the murder victim's sisters-in-law, who sustained severe -in one case, ultimately fatal -injuries.

With respect to mitigating circumstances, the trial judge made the same findings for all three capital murders. First, although there was no admitted evidence of prior convictions, respondent had stated that he had engaged in a course of stealing. In any case, even if respondent had no significant history of criminal activity, the aggravating circumstances "would still clearly far outweigh" that mitigating factor. Second, the judge found that, during all three crimes, respondent was not suffering from extreme mental or emotional disturbance and could appreciate the criminality of his acts. Third, none of the victims was a participant in, or consented to, respondent's conduct. Fourth, respondent's participation in the crimes was neither minor nor the result of duress or domination by an accomplice. Finally, defendant's age (26) could not be considered a factor in mitigation, especially when viewed in light of respondent's planning of the crimes and disposition of the proceeds of the various accompanying thefts.

In short, the trial judge found numerous aggravating circumstances and no (or a single comparatively insignificant) mitigating circumstance. With respect to each of the three convictions for capital murder, the trial judge concluded found numerous aggravating circumstances and no (or a single comparatively insignificant) mitigating circumstance and sentenced Mr. Washington to death. The Court opined that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to 2

make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 2066 (1984).”

Notwithstanding the holding in Strickland, counsel has a duty to investigate at every stage of the criminal process which includes both guilt and punishment.

See generally Performance Guidelines Capital Cases Guideline 11.1.

Defense counsel’s investigation of the merits of the criminal charges should include efforts to secure relevant information in the possession of the prosecution, law enforcement authorities, and others, as well as independent investigation. Counsel’s investigation should also include evaluation of the prosecution’s evidence (including possible re-testing or re-evaluation of physical, forensic, and expert evidence) and consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and other possible suspects and alternative theories that the evidence may raise. have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.

The investigation regarding guilt should be

conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented. Performance Guidelines Capital Cases Guideline 11.1.

A good and thorough investigation should be undertaken on every case. Whether retained or appointed counsel’s duties and responsibilities to the client do not change. A starting point of every investigation should be meeting and learning the client.

Communication with the client should include establishing a relationship built on trust and close contact. Performance Guidelines Capital Cases Guideline 10.2.

Communicating with clients should be continuing and ongoing and should be undertaken at every stage of the proceedings. The investigation should be fluid in that communications with the client should be interactive.

As facts and evidence are

discovered the client should be part considered an essential member of the defense team.

Counsel at all stages of the case should engage in a continuing and ongoing interactive

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dialogue with the client concerning all matters that might reasonably be expected to have a material impact on the case, such as: 1. the progress of and prospects for the factual investigation, and what assistance the client might provide to it; 2. current or potential legal issues; 3. the development of a defense theory; 4. presentation of the defense case; 5. potential agreed-upon dispositions of the case; 6. litigation deadlines and the projected schedule of case-related events; and 7. relevant aspects of the client’s relationship with correctional, parole or other governmental agents (e.g., prison medical providers or state psychiatrists).

Performance Guidelines Capital Cases Guideline 10.2.

Further counsel should be conducting extensive interviews with the client to determine: the background information in the case; any potential defenses; the identity of any witnesses available for guilt -- innocence, or on punishment; the names and addresses of all available family members; medical history; educational history; criminal history, etc.

State’s case It is imperative to conducting a thorough investigation to know the existence of the States case however the discovery and investigation process should begin immediately upon representation. As a matter of practice some jurisdictions will not provide formal discovery until indictment or the filing of a petition or complaint. Counsel should obtain items such as probable cause affidavits which can be a wealth of information by providing insight into the State’s case. Until a District Court obtains jurisdiction the State is not obligated to provide formal discovery and Courts have held that there is no enforcement mechanism to force the DA’s office to provide discovery prior to indictment. In re State ex rel. Munk, 494 S.W.3d 370 (Tex. App. Eastland 2015). In these instances counsel should begin informal discovery. Discovery requests should be immediately made to law enforcement and the district attorney for witness statements, police reports, witness lists, physical evidence, names of co-defendants (and any deals made with witnesses to testify); search and arrest warrant documents, copies of written or oral statements of the 4

defendant, and any other information immediately available to permit commencement of the defense investigation. After indictment, discovery requests and motions should be immediately submitted to the trial court for rulings. Discovery is governed by Texas Code of Crim. Procedure art. 39.14. Since the enactment of the Michael Morton Act the defense has an extended list of items that are discoverable, however timely requests must be made to the State. Article 39.14 is not triggered unless a request is made by the defense.

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STATE BAR OF TEXAS

GUIDELINES AND STANDARDS For TEXAS CAPITAL COUNSEL

Adopted by the State Bar Board of Directors April 21, 2006

GUIDELINES AND STANDARDS For TEXAS CAPITAL COUNSEL TABLE OF CONTENTS

Guideline........................................................................................................Page GUIDELINE 1.1 ─ OBJECTIVE AND SCOPE OF GUIDELINES ........................ 4 GUIDELINE 2.1 ─ ADOPTION AND IMPLEMENTATION OF A PLAN TO PROVIDE HIGH QUALITY LEGAL REPRESENTATION IN DEATH PENALTY CASES ......................................................................................4 GUIDELINE 3.1 ─ THE DEFENSE TEAM AND SUPPORTING SERVICES...... 4 GUIDELINE 4.1 ─ QUALIFICATIONS OF DEFENSE COUNSEL..................... 5 GUIDELINE 5.1 ─ WORKLOAD.......................................................................... 7 GUIDELINE 6.1 ─ MONITORING; REMOVAL..................................................... 7 GUIDELINE 7.1 ─TRAINING................................................................................ 8 GUIDELINE 8.1 ─ FUNDING AND COMPENSATION ........................................ 9 GUIDELINE 9.1 ─ ESTABLISHMENT OF PERFORMANCE STANDARDS .... 10 GUIDELINE 9.2 ─ APPLICABILITY OF PERFORMANCE STANDARDS ........ 10 GUIDELINE 9.3 ─ OBLIGATIONS OF COUNSEL RESPECTING WORKLOAD....................................................................................................... 11 GUIDELINE 10.1 ─ THE DEFENSE TEAM........................................................ 11 GUIDELINE 10.2 ─ RELATIONSHIP WITH THE CLIENT................................. 13

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TABLE OF CONTENTS GUIDELINE 10.3-ADDITIONAL OBLIGATIONS OF COUNSEL REPRESENTING A FOREIGN NATIONAL........................................................14 GUIDELINE 11.1 ─ TRIAL INVESTIGATION..................................................... 15 GUIDELINE 11.2 ─ THE DUTY TO ASSERT LEGAL CLAIMS ........................ 18 GUIDELINE 11.3 ─ THE DUTY TO SEEK AN AGREED-UPON DISPOSITION.....................................................................................................19 GUIDELINE 11.4 ─ ENTRY OF A PLEA OF GUILTY ....................................... 22 GUIDELINE 11.5 ─TRIAL PREPARATION OVERALL ..................................... 23 GUIDELINE 11.6 ─ VOIR DIRE AND JURY SELECTION................................. 23 GUIDELINE 11.7 ─ THE DEFENSE CASE CONCERNING PENALTY ............ 23 GUIDELINE 11.8 ─ THE DUTY TO FACILITATE THE WORK OF SUCCESSOR COUNSEL..................................................................................................26 GUIDELINE 12.1 DUTIES OF TRIAL COUNSEL AFTER CONVICTION ......... 27 GUIDELINE 12.2 - DUTIES OF POST-TRIAL COUNSEL .................................28 GUIDELINE 12.2(A) ─ DUTIES OF DIRECT APPEAL COUNSEL....................28 GUIDELINE 12.2(B) ─ DUTIES OF POST-CONVICTION COUNSEL............... 30 GUIDELINE 12.2(C) ─ DUTIES OF CLEMENCY COUNSEL ............................ 41

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TEXAS CAPITAL COUNSEL GUIDELINES GUIDELINE 1.1 ─ OBJECTIVE AND SCOPE OF GUIDELINES A.

The objective of these Guidelines is to set forth a state-wide standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any State of Texas jurisdiction.

B.

These Guidelines apply from the moment the client is taken into custody and extend to all stages of every case in which the State of Texas may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial, post-conviction review, clemency proceedings and any connected litigation.

GUIDELINE 2.1 ─ ADOPTION AND IMPLEMENTATION OF A PLAN TO PROVIDE HIGH QUALITY LEGAL REPRESENTATION IN DEATH PENALTY CASES A.

Each jurisdiction should adopt and implement a plan formalizing the means by which high quality legal representation in death penalty cases is to be provided in accordance with these Guidelines (the “Legal Representation Plan”).

B.

The Legal Representation Plan should set forth how the jurisdiction will conform to each of these Guidelines.

C.

All elements of the Legal Representation Plan should be structured to ensure that counsel defending death penalty cases are able to do so free from political influence and under conditions that enable them to provide zealous advocacy in accordance with professional standards.

GUIDELINE 3.1 ─ THE DEFENSE TEAM AND SUPPORTING SERVICES A.

The Legal Representation Plan should provide for assembly of a defense team that will provide high quality legal representation.

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1. The defense team should consist of no fewer than two attorneys qualified in accordance with GUIDELINE 4.1, an investigator, and a mitigation specialist.

2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.

B.

The Legal Representation Plan should provide for counsel to receive the assistance of all expert, investigative, and other ancillary professional services reasonably necessary or appropriate to provide high quality legal representation at every stage of the proceedings. The Plan should specifically ensure provision of such services to private attorneys whose clients are financially unable to afford them.

1. Counsel should have the right to have such services provided by persons independent of the government.

2. Counsel should have the right to protect the confidentiality of communications with the persons providing such services to the same extent as would counsel paying such persons from private funds.

GUIDELINE 4.1 ─ QUALIFICATIONS OF DEFENSE COUNSEL A.

Qualification standards for defense counsel in capital cases should be developed and published. These standards should be construed and applied in such a way as to further the overriding goal of providing each client with high quality legal representation.

B.

In formulating qualification standards, the following principles should insure: 1. That every attorney representing a capital defendant has: a.

obtained a license or permission to practice in the jurisdiction;

5

b.

demonstrated a commitment to providing zealous advocacy and high quality legal representation in the defense of capital cases; and satisfied the training requirements set forth in GUIDELINE 7.1.

2. That the pool of defense attorneys as a whole is such that each capital defendant within the jurisdiction receives high quality legal representation. Accordingly, the qualification standards should insure that the pool includes sufficient numbers of attorneys who have demonstrated: a.

substantial knowledge and understanding of the relevant state, federal and international law, both procedural and substantive, governing capital cases;

b.

skill in the management and conduct of complex negotiations and litigation;

c.

skill in legal research, analysis, and the drafting of litigation documents;

d.

skill in oral advocacy;

e.

skill in the use of expert witnesses and familiarity with common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and DNA evidence;

f.

skill in the investigation, preparation, and presentation of mitigating evidence;

g.

skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses, and opening and closing statements; and,

h.

skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses, and opening and closing statements.

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GUIDELINE 5.1 ─ WORKLOAD A.

Effectual mechanisms should be implemented to ensure that the workload of attorneys representing defendants in death penalty cases is maintained at a level that enables counsel to provide each client with high quality legal representation in accordance with these Guidelines.

GUIDELINE 6.1 ─ MONITORING; REMOVAL A.

The performance of all defense counsel should be monitored to ensure that the client is receiving high quality legal representation. Where there is evidence that an attorney is not providing high quality legal representation, appropriate action should be taken to protect the interests of the attorney’s current and potential clients.

B.

A regular procedure for investigating and resolving any complaints made by judges, clients, attorneys, or others should be established and publicized, should defense counsel fail to provide high quality representation.

C.

The rosters of attorneys who have been certified to accept appointments in capital cases should be periodically reviewed to ensure that those attorneys remain capable of providing high quality legal representation. Where there is evidence that an attorney has failed to provide high quality legal representation, the attorney should not receive additional appointments and should be removed from the roster. Where there is evidence that a systemic defect in a defender office has caused the office to fail to provide high quality legal representation, the office should not receive additional appointments.

D.

Before taking final action making an attorney or a defender office ineligible to receive additional appointments, written notice should be given that such action is being contemplated, and give the attorney or defender office opportunity to respond in writing.

E.

An attorney or defender office sanctioned pursuant to this Guideline should be restored to the roster only in exceptional circumstances.

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F.

This Guideline should be implemented consistently with GUIDELINE 2.1, so that an attorney’s zealous representation of a client cannot be cause for the imposition of sanctions pursuant to this guideline.

GUIDELINE 7.1 ─TRAINING A.

The Legal Representation Plan should provide funds for the effective training, professional development, and continuing education of all members of the defense team.

B.

Attorneys seeking to qualify to receive appointments should be required to satisfactorily complete a comprehensive training program in the defense of capital cases. Such a program should include, but not be limited to, presentations and training in the following areas: 1. relevant state, federal, and international law; 2. pleading and motion practice; 3. pretrial investigation, preparation, and theory development regarding guilt/innocence and penalty; 4. jury selection; 5. trial preparation and presentation, including the use of experts; 6. ethical considerations particular to capital defense representation; 7. preservation of the record and of issues for post-conviction review; 8. counsel’s relationship with the client and his family; 9. post-conviction litigation in state and federal courts; 10. the presentation and rebuttal of scientific evidence, and developments in mental health fields and other relevant areas of forensic and biological science; 11. the unique issues relating to the defense of those charged with committing capital offenses when under the age of 18.

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C.

Attorneys seeking to remain on the roster or appointment roster should be required to attend and successfully complete, at least once every two years, a specialized training program that focuses on the defense of death penalty cases.

D.

All non-attorneys wishing to be eligible to participate on defense teams should receive continuing professional education appropriate to their areas of expertise.

GUIDELINE 8.1 ─ FUNDING AND COMPENSATION A.

The Legal Representation Plan must ensure funding for the full cost of high quality legal representation, as defined by these Guidelines, by the defense team and outside experts selected by counsel.

B.

Counsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation.

1. Flat fees, caps on compensation, and lump-sum contracts are improper in death penalty cases.

2. Attorneys employed by defender organizations should be compensated according to a salary scale that is commensurate with the salary scale of the prosecutor’s office in the jurisdiction.

3. Appointed counsel should be fully compensated for actual time and service performed at an hourly rate commensurate with the prevailing rates for similar services performed by retained counsel in the jurisdiction, with no distinction between rates for services performed in or out of court. Periodic billing and payment should be available.

C.

Non-attorney members of the defense team should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the specialized skills needed by those who assist counsel with the litigation of death penalty cases, such as: 9

1. Investigators employed by defender organizations should be compensated according to a salary scale that is commensurate with the salary scale of the prosecutor’s office in the jurisdiction.

2. Mitigation specialists and experts employed by defender organizations should be compensated according to a salary scale that is commensurate with the salary scale for comparable expert services in the private sector.

3. Members of the defense team assisting private counsel should be fully compensated for actual time and service performed at an hourly rate commensurate with prevailing rates paid by retained counsel in the jurisdiction for similar services, with no distinction between rates for services performed in or out of court. Periodic billing and payment should be available.

4. Additional compensation should be provided in unusually protracted or extraordinary cases.

5. Counsel and members of the defense team should be fully reimbursed for reasonable incidental expenses.

GUIDELINE 9.1 ─ ESTABLISHMENT OF PERFORMANCE STANDARDS A.

The standards of performance should be formulated so as to insure that all counsel provide high quality legal representation in capital cases in accordance with these Guidelines. The standards of performance should include, but not be limited to, the specific standards set out in these Guidelines.

GUIDELINE 9.2 ─ APPLICABILITY OF PERFORMANCE STANDARDS A.

Counsel should provide high quality legal representation in accordance w with these Guidelines for so long as the jurisdiction is legally entitled to seek the death penalty.

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GUIDELINE 9.3 ─ OBLIGATIONS OF COUNSEL RESPECTING WORKLOAD A.

Counsel representing clients in death penalty cases should limit their caseloads to the level needed to provide each client with high quality legal representation in accordance with these Guidelines.

B.

Counsel representing the death penalty clients must, due to the severity of nature of the case and the necessity for time-consuming research and preparation, give priority to death penalty clients over their other caseload.

C.

In the event that counsel's caseload becomes overextended after acceptance of a death penalty case, so that reasonable time is not available to properly complete the tasks necessary for providing maximum quality representation, counsel should notify the court and request additional legal assistance, or seek to withdraw, or take steps to reduce other caseload matters which conflict with his death penalty representation.

GUIDELINE 10.1 ─ THE DEFENSE TEAM A.

After the appearance of Lead counsel, either by court appointment or being retained to represent the defendant, lead counsel bears overall responsibility for the performance of the defense team, and should allocate, direct, and supervise its work in accordance with these Guidelines and professional standards.

1. Subject to the foregoing, lead counsel may delegate to other members of the defense team duties imposed by these Guidelines, unless: 2. The Guideline specifically imposes the duty on “lead counsel,” or The Guideline specifically imposes the duty on “all counsel” or “all members of the defense team.”

B.

As soon as possible after designation, lead counsel should assemble a defense team by: 1. Requesting the court to appoint associate counsel to assist lead counsel with the responsibilities of representation. Lead counsel 11

should consult with available potential associate counsel to insure their qualifications, desire and availability to properly assist in the representation.

2. Lead counsel, in consultation with associate counsel, should make application to the Court for financial assistance for securing the following additional services for the defense team: a.

A private investigator to conduct factual investigations of the case on guilt -- innocence and punishment issues;

b.

A qualified "mitigation expert" should be enlisted, if the existing defense team does not have the present expertise in obtaining and evaluating such mitigation evidence, pursuant to the standards set out in Wiggins v. Smith, 539 U.S. 510 (2003).

c.

A mental health associate, qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments, should be enlisted to determine the client’s mental health history for the purposes of pursuing issues of mental retardation, competency to stand trial, insanity at the time of the offense and other mitigating mental health problems for punishment consideration. In the event that the mental health associate determines the possibility of legitimate mental health issues, lead counsel should then make application to the Court that the appropriate experts be appointed by the Court for making expert of valuations of the defendant’s condition, and

d.

any other members needed to provide high quality legal representation.

C.

Counsel at all stages should demand on behalf of the client all resources necessary to provide high quality legal representation. If such resources are denied, counsel should make an adequate record to preserve the issue for further review.

D.

Counsel should recognize that under Texas law, application to the Court for financial assistance for experts with regard to some of the above 12

issues may be requested in an ex parte proceeding, under seal, to preserve the attorney-client privileged information. Counsel should be prepared to submit ex parte requests for funding, accompanied by the appropriate affidavits, showing the need for the financial assistance sought, and be prepared to make a record to the court in-chambers of the necessity for such financial assistance. Counsel should also be aware that due to the constraints of the budgets of most counties, while a court may deny an initial request for funds, that subsequent, follow-up requests should be submitted to the court, based upon the exigencies of the case. See Article 26.052 f), V.A.C.C.P. GUIDELINE 10.2 ─ RELATIONSHIP WITH THE CLIENT A.

Counsel at all stages of the case should make every appropriate effort to establish a relationship of trust with the client, and should maintain close contact with the client.

1. Barring exceptional circumstances, the client should be contacted within 24 hours of initial counsel’s entry into the case, with full and complete interviews of the client to be conducted as soon as practically possible.

2. Promptly upon entry into the case, initial counsel should communicate in an appropriate manner with both the client and the government regarding the protection of the client’s rights against self-incrimination, to the effective assistance of counsel, and to preservation of the attorney-client privilege and similar safeguards.

B.

Counsel at all stages of the case should re-advise the client and the government regarding these matters as appropriate.

C.

Counsel at all stages of the case should engage in a continuing interactive dialogue with the client concerning all matters that might reasonably be expected to have a material impact on the case, such as: 1. the progress of and prospects for the factual investigation, and what assistance the client might provide to it; 2. current or potential legal issues; 13

3. the development of a defense theory; 4. presentation of the defense case; 5. potential agreed-upon dispositions of the case; 6. litigation deadlines and the projected schedule of case-related events; and 7. relevant aspects of the client’s relationship with correctional, parole or other governmental agents (e.g., prison medical providers or state psychiatrists).

GUIDELINE 10.3 -- ADDITIONAL OBLIGATIONS REPRESENTING A FOREIGN NATIONAL

OF

COUNSEL

A.

Counsel at every stage of the case should make appropriate efforts to determine whether any foreign country might consider the client to be one of its nationals.

B.

Counsel representing a foreign national should: 1. Immediately determine if the client’s ability to communicate with counsel, in English, is sufficient to allow counsel and the client to adequately communicate. Counsel must recognize that some foreign nationals speak in dialects of which counsel may be unfamiliar, resulting in unintended miscommunication.

2. If there are any language conflicts, counsel should immediately request the court to appoint an appropriate interpreter to assist the defense in all stages of the proceeding, or counsel may request permission to withdraw due to language problems. It is highly recommended that both lead and associate counsel have adequate communication with the defendant, rather than just one of counsel.

3. Immediately advise the client of his or her right to communicate with the relevant consular office; and 4. Obtain the consent of the client to contact the consular office. After obtaining consent, counsel should immediately contact the client’s 14

consular office and inform it of the client’s detention or arrest.

Counsel who is unable to obtain consent should exercise his or her best professional judgment under the circumstances.

GUIDELINE 11.1 ─ TRIAL INVESTIGATION A.

Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.

1. The investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented.

2. The investigation for the guilt -- innocence phase of the trial should generally encompass the following aspects: a.

Extensive interviews with the client to determine: the background information in the case; any potential defenses; the identity of any witnesses available for guilt -- innocence, or on punishment; the names and addresses of all available family members; medical history; educational history; criminal history, etc.;

b.

Informal discovery requests (before indictment if possible) should be immediately made to law enforcement and the district attorney for witness statements, police reports, witness lists, physical evidence, names of co-defendants (and any deals made with witnesses to testify); search and arrest warrant documents, copies of written or oral statements of the defendant, and any other information immediately available to permit commencement of the defense investigation. After indictment, formal discovery motions should be immediately submitted to the Court for resolution and ruling.

c.

Interviewing as soon as practically possible any potential witnesses relevant to the issues of guilt innocence, 15

properly preserving such witness information by written statement, affidavit or audio/video recording. d.

Reviewing the scene of the crime, recording exact locations of relevant events, lighting conditions, physical layout, etc.

e.

Interviewing family members and other relevant witnesses to the defendant’s mental health condition

f.

Conducting review of entire client's entire criminal history, including obtaining copies of prior conviction records, arrests, etc.

g.

Research and preparation of pretrial strategy for suppression motions, motions to quash, discovery requests, both formal and informal, etc.

h.

Plan trial strategy, including discovery requests, pretrial motion practice, jury selection, cross examination techniques of State witnesses, probable legal issues arising during trial, presentation of defense case (including defendant’s possible testimony), possible rebuttal issues, jury charge issues, final argument strategy.

i.

Conducting a review of the client’s possible mental retardation, in view of the decision of Atkins v. Virginia, 536 U.S. 304 (2002). Counsel are advised that the issue of mental retardation may not easily be determined from the attorneys’ interviews with the client. The client will generally attempt to “mask” such condition. Special expertise in recognizing actual mental retardation is required.

Counsel are advised to pursue pretrial hearings to challenge any attempt by the State to seek death, if there is credible evidence of mental retardation, until such time as the Texas Legislature sets a statutory procedure, or the United States Supreme Court determines that pretrial hearings are not constitutionally required on the mental retardation issue.

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j.

In view of the decision of Roper v. Simmons, ___U.S. ____ (No. 03-633, 3/1/05), especially in cases involving aliens, where the client’s date of birth may be difficult to document, a special investigation may be required to ascertain the true “age” of the defendant to ensure that he is “death eligible” and if not, ensure that the prosecution is aware of such evidence. Counsel are advised that it may be necessary to pursue special pretrial hearings to challenge any attempt by the State to seek death, if there is credible evidence that the client is under 18 years of age, or if there is no credible evidence to show his exact birthdate, as it would appear that the State has the burden to prove an accurate date of birth before death is sought.

3. The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented. a.

Discovery -- all efforts should be made to determine, well in advance of trial, the evidence the State intends to use during the punishment phase of the trial, extraneous offenses, prior criminal convictions, and expert witnesses.

b.

The investigation for the punishment phase of the trial should generally encompass the following aspects: (i.) Development of character witnesses and family background evidence, and where applicable, relevant records and witnesses from additional sources, including military, school, hospital, past employment, etc., to corroborate mitigating evidence theory; (ii.) Development of expert witnesses on mental health issues, if any; (iii.) Development of rebuttal witnesses for State’s extraneous offenses, if any; (iv.) Development of the defendant’s testimony, if necessary; (v.) Planning of cross examination of State witnesses; (vi.) Preparation for jury charge issues; or, (vii.) Preparation of final argument.

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B.

Counsel at every stage have an obligation to conduct a full examination of the defense provided to the client at all prior phases of the case. This obligation includes at minimum interviewing prior counsel and members of the defense team and examining the files of prior counsel.

C.

Counsel at every stage have an obligation to satisfy themselves independently that the official record of the proceedings is complete and to supplement it as appropriate.

GUIDELINE 11.2 ─ THE DUTY TO ASSERT LEGAL CLAIMS A.

Counsel at every stage of the case, exercising professional judgment in accordance with these Guidelines, should: 1. Consider all legal claims potentially available; and 2. Thoroughly investigate the basis for each potential claim before reaching a conclusion as to whether it should be asserted; and 3. Evaluate each potential claim in light of: a. b.

c.

d.

B.

The unique characteristics of death penalty law and practice; The near certainty that all available avenues of postconviction relief will be pursued in the event of conviction and imposition of a death sentence; The importance of protecting the client’s rights against later contentions by the government that the claim has been waived, defaulted, not exhausted, or otherwise forfeited; and, Any other professionally appropriate costs and benefits to the assertion of the claim.

Counsel who decide to assert a particular legal claim should: 1. Present the claim as forcefully as possible, tailoring the presentation to the particular facts and circumstances in the client’s case and the applicable law; and 2. Ensure that a full record is made of all legal proceedings in 18

connection with the claim.

C.

Counsel at all stages of the case should keep under consideration the possible advantages to the client of: 1. Asserting legal claims whose basis has only recently become known or available to counsel; and 2. Supplementing claims previously made with additional factual or legal information.

GUIDELINE 11.3 ─ THE DUTY TO SEEK AN AGREED-UPON DISPOSITION A.

Counsel at every stage of the case have an obligation to take all steps that may be appropriate in the exercise of professional judgment in accordance with these Guidelines to achieve an agreed-upon disposition.

B.

Counsel at every stage of the case should explore with the client the possibility and desirability of reaching an agreed-upon disposition. In so doing, counsel should fully explain the rights that would be waived, the possible collateral consequences, and the legal, factual, and contextual considerations that bear upon the decision. Specifically, counsel should know and fully explain to the client: 1. The maximum penalty that may be imposed for the charged offense(s) and any possible lesser included or alternative offenses; 2. Any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation, civil liabilities, and the use of the disposition adversely to the client in penalty phase proceedings of other prosecutions of him as well as any direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and goodtime credits; 3. The general range of sentences for similar offenses committed by defendants with similar backgrounds;

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4. The governing legal regime, including but not limited to whatever choices the client may have as to the fact finder and/or sentences; 5. The types of pleas that may be agreed to, such as a plea of guilty, a conditional plea of guilty, or a plea of nolo contendere or other plea which does not require the client to personally acknowledge guilt, along with the advantages and disadvantages of each; 6. Whether any agreement negotiated can be made binding on the court, on penal/parole authorities, and any others who may be involved; 7. The practices, policies and concerns of the particular jurisdiction, the judge and prosecuting authority, the family of the victim and any other persons or entities which may affect the content and likely results of plea negotiations; 8. Concessions that the client might offer, such as: a. b.

c.

d.

e. f.

g.

An agreement to waive trial by jury and to plead guilty to particular charges; An agreement regarding future custodial status, such as one to be confined in a more onerous category of institution than would otherwise be the case; An agreement to forego in whole or part legal remedies such as appeals, or for post-conviction relief, and/or parole or clemency applications; An agreement to provide the prosecution with assistance in investigating or prosecuting the present case or other alleged criminal activity; An agreement to engage in or refrain from any particular conduct, as appropriate to the case; An agreement with the victim’s family, which may include matters such as: a meeting between the victim’s family and the client, a promise not to publicize or profit from the offense, the issuance or delivery of a public statement of remorse by the client, or restitution; Agreements such as those described in Subsection (8) (a)-(f) respecting actual or potential charges in another jurisdiction; 20

9. Benefits the client might obtain from a negotiated settlement, including: a.

A guarantee that the death penalty will not be imposed;

b.

An agreement that the defendant will receive a specific sentence;

c.

An agreement that the prosecutor will not advocate a certain sentence, will not present certain information to the court, or will engage in or refrain from engaging in other actions with regard to sentencing;

d.

An agreement that one or more of multiple charges will be reduced or dismissed;

e.

An agreement that the client will not be subject to further investigation or prosecution for uncharged alleged or suspected criminal conduct;

f.

An agreement that the client may enter a conditional plea to preserve the right to further contest certain legal issues;

g.

An agreement that the court or prosecutor will make specific recommendations to correctional or parole authorities regarding the terms of the client’s confinement;

h.

Agreements such as those described in Subsection (9) (a)-(g) respecting actual or potential charges in another jurisdiction.

C.

Counsel should keep the client fully informed of any negotiations for a disposition, convey to the client any offers made by the prosecution, and discuss with the client possible negotiation strategies.

D.

Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement along with the advantages, disadvantages and potential consequences of the agreement.

E.

If a negotiated disposition would be in the best interest of the client, initial refusals by the prosecutor to negotiate should not prevent counsel from 21

making further efforts to negotiate. Similarly, a client’s initial opposition should not prevent counsel from engaging in an ongoing effort to persuade the client to accept an offer of resolution that is in the client’s best interest.

F.

Counsel should not accept any agreed-upon disposition without the client’s express authorization.

G.

The existence of ongoing negotiations with the prosecution does not in any way diminish the obligations of defense counsel respecting litigation.

GUIDELINE 11.4 ─ ENTRY OF A PLEA OF GUILTY A.

The informed decision whether to enter a plea of guilty lies with the client. In the event the client determines to enter a plea of guilty: 1. Prior to the entry of the plea, counsel should: a.

Make certain that the client understands the rights to be waived by entering the plea and that the client’s decision to waive those rights is knowing, voluntary and intelligent.

b.

Ensure that the client understands the conditions and limits of the plea agreement and the maximum punishment, sanctions, and other consequences to which he or she will be exposed by entering the plea.

c.

Explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering questions in court and providing a statement concerning the offense.

d.

e.

Ensure that the client is mentally competent and psychologically capable of making a decision to enter a plea of guilty.

2. During entry of the plea, counsel should make sure that the full content and conditions of any agreements with the government are placed on the record.

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GUIDELINE 11.5 ─TRIAL PREPARATION OVERALL A.

As the investigations mandated by GUIDELINE 11.1 produce information, trial counsel should formulate a defense theory.

Counsel should seek a theory that will be effective in connection with both guilt and penalty, and should seek to minimize any inconsistencies.

GUIDELINE 11.6 ─ VOIR DIRE AND JURY SELECTION A.

Counsel should consider, along with potential legal challenges to the procedures for selecting the jury that would be available in any criminal case (particularly those relating to bias on the basis of race or gender), whether any procedures have been instituted for selection of juries in capital cases that present particular legal bases for challenge. Such challenges may include challenges to the selection of the grand jury and grand jury forepersons as well as to the selection of the petit jury venire.

B.

Counsel should be familiar with the precedents relating to questioning and challenging of potential jurors, including the procedures surrounding “death qualification” concerning any potential juror’s belief about the death penalty. Counsel should be familiar with techniques: (1) for exposing those prospective jurors who would automatically impose the death penalty following a murder conviction or finding that the defendant is death-eligible, regardless of the individual circumstances of the case; (2) for uncovering those prospective jurors who are unable to give meaningful consideration to mitigating evidence; and (3) for rehabilitating potential jurors whose initial indications of opposition to the death penalty make them possibly excludable.

C.

Counsel should consider seeking expert assistance in the jury selection process.

GUIDELINE 11.7 ─ THE DEFENSE CASE CONCERNING PENALTY A.

As set out in GUIDELINE 11.1, counsel at every stage of the case have a continuing duty to investigate issues bearing upon penalty and to seek information that supports mitigation or rebuts the prosecution’s case in aggravation.

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B.

Trial counsel should discuss with the client early in the case the sentencing alternatives available, and the relationship between the strategy for the sentencing phase and for the guilt/innocence phase.

C.

Prior to the sentencing phase, trial counsel should discuss with the client the specific sentencing phase procedures and advise the client of steps being taken in preparation for sentencing.

D.

Counsel at every stage of the case should discuss with the client the content and purpose of the information concerning penalty that they intend to present to the sentencing body, means by which the mitigation presentation might be strengthened, and the strategy for meeting the prosecution’s case in aggravation.

E.

Counsel should consider, and discuss with the client, the possible consequences of having the client testify or make a statement to the sentencing body.

F.

In deciding which witnesses and evidence to prepare concerning penalty, the areas counsel should consider include the following: 1. Witnesses familiar with and evidence relating to the client’s life and development, from conception to the time of sentencing, that would be explanatory of the offense(s) for which the client is being sentenced, would rebut or explain evidence presented by the prosecutors, would present positive aspects of the client’s life, or would otherwise support a sentence less than death: 2. Expert and lay witnesses along with supporting documentation (e.g., school records, military records) to provide medical, psychological, sociological, cultural or other insights into the client’s mental and/or emotional state and life history that may explain or lessen the client’s culpability for the underlying offense(s); to give a favorable opinion as to the client’s capacity for rehabilitation, or adaptation to prison; to explain possible treatment programs, or otherwise support a sentence less than death; and/or to rebut or explain evidence presented by the prosecutor;

24

3. Witnesses who can testify about the applicable alternative to a death sentence and/or the conditions under which the alternative sentence would be served; 4. Witnesses who can testify about the adverse impact of the client’s execution on the client’s family and loved ones; 5. Demonstrative evidence, such as photos, videos, and physical objects (e.g., trophies, artwork, military medals), and documents that humanize the client or portray him positively, such as certificates of earned awards, favorable press accounts, and letters of praise or reference.

G.

In determining what presentation to make concerning penalty, counsel should consider whether any portion of the defense case will open the door to the prosecution’s presentation of otherwise inadmissible aggravating evidence. Counsel should pursue all appropriate means (e.g., motions in limine) to ensure that the defense case concerning penalty is constricted as little as possible by this consideration, and should make a full record in order to support any subsequent challenges.

H.

Trial counsel should determine at the earliest possible time what aggravating factors the prosecution will rely upon in seeking the death penalty and what evidence will be offered in support thereof. If the jurisdiction has rules regarding notification of these factors, counsel at all stages of the case should object to any non-compliance, and if such rules are inadequate, counsel at all stages of the case should challenge the adequacy of the rules.

I.

Counsel at all stages of the case should carefully consider whether all or part of the aggravating evidence may appropriately be challenged as improper, inaccurate, misleading or not legally admissible.

J.

If the prosecution is granted leave at any stage of the case to have the client interviewed by witnesses associated with the government, defense counsel should carefully consider: 1. What legal challenges may appropriately be made to the interview or the conditions surrounding it;

25

2. The legal and strategic issues implicated by the client’s co-operation or non-cooperation; 3. Ensure that the client understands the significance of any statements made during such and interview; and, 4. Attend the interview.

K.

Trial counsel should request jury instructions and verdict forms that ensure that jurors will be able to consider and give effect to all relevant mitigating evidence. Trial counsel should object to instructions or verdict forms that are constitutionally flawed, or are inaccurate, or confusing and should offer alternative instructions. Post-conviction counsel should pursue these issues through factual investigation and legal argument.

L.

Counsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client.

GUIDELINE 11.8 - DUTY TO FACILITATE WORK OF SUCCESSOR COUNSEL A.

In accordance with professional norms, all persons who are or have been members of the defense team have a continuing duty to safeguard the interests of the client and should cooperate fully with successor counsel. This duty includes, but is not limited to: 1. Maintaining the records of the case in a manner that will inform successor counsel of all significant developments relevant to the litigation; 2. Providing the client’s files, as well as information regarding all aspects of the representation, to successor counsel; 3. Sharing potential further areas of legal and factual research with successor counsel; and cooperating with such professionally appropriate legal strategies as may be chosen by successor counsel.

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GUIDELINE 12.1- DUTIES OF TRIAL COUNSEL AFTER CONVICTION A.

Trial counsel should be familiar with all state and federal post-conviction options available to the client. Trial counsel should discuss with the client the post-conviction procedures that will or may follow imposition of the death sentence.

B.

Trial counsel should take whatever action(s), such as filing of a motion for a new trial, will maximize the client’s ability to obtain post-conviction relief.

C.

Trial counsel should not cease acting on the client’s behalf until successor counsel has entered the case or trial counsel’s representation has been formally terminated.

D.

Trial counsel should consider carefully whether they should accept appointment for the appeal of the case. While Texas law does permit trial counsel to be appointed for appeal upon a showing of “good cause”, see Article 26.052 (k), V.A.C.C.P., the availability of some habeas issues may be negatively impacted by counsel’s representation at both phases, resulting in claims conceivably being procedurally defaulted or waived. In the event that counsel and the appellant strongly desire that one of the trial counsel act as counsel on appeal, it is recommended that another independent counsel also be appointed as lead appellate counsel to prevent any conflicts.

E.

Trial counsel should take all appropriate action to ensure that the client obtains successor counsel as soon as possible.

F.

Trial counsel should cooperate with successor direct appeal, habeas and clemency counsel in providing relevant information to successor counsel, including trial counsel's prior representation files upon the client's consent, in order to maintain continuity of representation, and to assist future counsel in presentation of issues relevant to subsequent litigation efforts.

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GUIDELINE 12.2 - DUTIES OF POST-TRIAL COUNSEL A.

Duties of Direct Appeal Counsel 1. Counsel should, upon being contacted by the court or client concerning representation in a capital appeal, immediately consult with the court and/or the clerk of the court to ascertain relevant information concerning relevant filing deadlines, in order to ensure that counsel's acceptance of the case permits counsel the maximum opportunity for proper representation.

2. Counsel should immediately contact trial counsel to obtain background information on the client, the nature of the issues presented and the possibility of filing a motion for new trial with regard to any issues that need to be raised in such proceeding.

3. Counsel should, upon acceptance of appellate representation, immediately inform the court and the prosecution of his representation by filing the appropriate designation of counsel with the court, along with the proper designation of the Clerk's Record and Court Reporter's Record as mandated by the Texas Rules of Appellate Procedure.

4. Counsel should immediately request the trial court to appoint habeas corpus counsel, under Article 11.071, Code of Criminal Procedure, to represent the client in the parallel capital habeas proceedings. It is recommended that counsel on appeal contact qualified attorneys, certified by the Texas Court of Criminal Appeals for habeas representation, to determine their availability for representation and their desire to assist counsel in the particular case.

5. Counsel should consult and cooperate with habeas corpus counsel in order to maximize proper presentation of the respective appellate issues and habeas corpus issues to secure the best possible postconviction review for the client.

6. Counsel should be cognizant of decisions with regard to capital murder issues from the United States Supreme Court, Fifth Circuit Court of Appeals, and from across the country, maintaining current 28

research capabilities, including law library facilities, online legal resources, and all other resources for presentation of all available issues to the Court.

7. Counsel must recognize that errors are often committed by the clerk in preparation of the clerk’s transcript, and by the court reporter in compiling the reporter’s transcript, therefore counsel must ensure that the record is true, correct and complete in all respects. If errors or omissions are found, objections to the record must be immediately filed with the trial or appellate courts, to obtain corrections or hearings to insurer reliability of the record.

8. Counsel should fully review the appellate record for all reviewable errors, preparing a well researched and drafted appellate brief which conforms with Court of Criminal Appeals rules and policies, ensuring that the brief is filed in a timely manner, timely notifying the Court of Criminal Appeals of his desire to present oral argument in the case, if appropriate.

9. Counsel should be prepared to prepare and file a Reply Brief in opposition to any brief filed by the District Attorney's Office within a timely manner.

10. Should counsel desire to present oral argument to the Court of Criminal Appeals, counsel should be familiar with the rules and policies of the Court concerning arguments, and ensure that his argument presented is geared to issues that are worthy of presentation under current standards, and not wasteful of the Court’s time.

11. Counsel should be prepared to file a Motion for Rehearing with the Court of Criminal Appeals should the conviction be affirmed, or conversely, be prepared to defend against the State's Motion for Rehearing, should the Court of Criminal Appeals reverse the conviction on original submission.

12. Counsel should be prepared to research, prepare and file a Petition for Writ Of Certiorari in the United States Supreme Court should the conviction be affirmed, or ensure that counsel is obtained or appointed to seek certiorari to review, should original appellate counsel not be prepared to proceed with such representation.

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13. Should appellate relief be denied by the Court of Criminal Appeals and/or United States Supreme Court, counsel on appeal should consult with habeas counsel to ensure that federal habeas corpus counsel is assigned for future representation of the client.

B.

Duties of Habeas Corpus Counsel 1. General Responsibilities a.

Habeas corpus counsel must understand that the state habeas corpus proceeding is not a second direct appeal.

Direct appeal-like, record-based claims are not cognizable in state habeas corpus and can be fatal to the capital client.

Counsel should not accept an appointment if he or she is not prepared to undertake the comprehensive extra-record investigation that habeas corpus demands.

b.

Habeas corpus counsel cannot rely on the previously compiled record, but must conduct a thorough and independent investigation. Specifically, habeas counsel cannot rely on the work of, or representations made by, prior counsel to limit the scope of the post-conviction investigation. Counsel must not assume that the trial record presents either a complete or accurate picture of the facts and issues in the case.

c.

Habeas corpus counsel must treat the habeas corpus stage as both the first and last meaningful opportunity to present new evidence to challenge the capital client’s conviction and sentence. Therefore, counsel has a duty to conduct a searching inquiry to assess whether any constitutional violations may have taken place, including – but not limited to – claims involving police and prosecutorial misconduct, faulty eyewitness evidence, unreliable jailhouse informant testimony, coerced confessions, dubious or flawed forensic scientific methods, ineffective assistance of trial and appellate counsel, and juror misconduct.

30

d.

Because state habeas corpus is the first opportunity for a capital client to raise challenges to the effectiveness of trial or direct appeal counsel, state habeas corpus counsel should not accept the appointment if he or she represented the client at the capital murder trial or on direct appeal of the capital conviction and death sentence.

e.

Habeas corpus counsel should assume that any meritorious issue not contained in the first state application for writ of habeas corpus will be waived or procedurally defaulted in subsequent federal habeas corpus litigation, or barred by strict rules governing successive state habeas corpus applications. State habeas corpus counsel’s lack of diligence, mistakes, missteps, and omissions will be attributed to the capital client and will follow the client throughout all remaining proceedings in state and federal court.

f.

Habeas corpus counsel must master the set of procedural rules and statutes that may restrict the capital client’s opportunity for federal habeas corpus review, including the federal statute of limitations found in the Antiterrorism and Effective Death Penalty Act. State habeas corpus counsel’s failure to understand AEDPA’s implications may result in the unwitting forfeiture of a capital client’s right to federal habeas corpus review.

g.

Attorneys seeking to qualify to receive state habeas corpus appointments should be required to satisfactorily complete a comprehensive training program. At least once every two years, attorneys seeking to remain on the state habeas corpus appointment roster should be required to successfully complete a specialized training program that focuses on the representation of death row inmates in state and federal post-conviction proceedings.

2. Client Communication a.

Without exception, habeas corpus counsel has a duty to meet the capital client face-to-face as soon as possible 31

after appointment. Counsel, or some member of the defense team, should make every effort to establish a relationship of trust with the client. It is also essential for counsel or some member of the defense team to develop a relationship of trust with the client’s family or others on whom the client relies for support and advice. b.

Habeas corpus counsel has a duty to keep the capital client informed of case developments, the progress of the investigation, potential legal issues, and litigation deadlines. Although some strategic decisions require the client’s knowledge and agreement, others, which may be made by counsel, should nonetheless be fully discussed with the client beforehand.

c.

It is a dereliction of habeas corpus counsel’s duty to simply acquiesce to a capital client’s insistence that he or she wishes to be executed, or wants to challenge only the conviction but not the sentence. Counsel must try to identify the source of the client’s feelings about these matters. Counsel should consult lawyers, clergy, mental health professionals, the client’s family or others who have worked with similarly situated death row inmates.

d.

Habeas corpus counsel should be familiar enough with the capital client’s mental condition to make a reasoned decision – fully documented, for the benefit of actors at later stages of the case –whether to assert the position that the client is not competent to waive further proceedings.

e.

Habeas corpus counsel should make appropriate efforts to determine whether any foreign country might consider the capital client to be one of its nationals. Unless predecessor counsel has already done so, counsel representing a foreign national should immediately advise the client of his or her right to communicate with the relevant consular office; and obtain the consent of the client to contact the consular office. After obtaining consent, counsel should immediately contact the client’s consular office and inform it of the client’s conviction and sentence.

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3. The Duty to Investigate a.

Because habeas corpus counsel must review what are, in essence, two different trials, providing quality representation in capital cases requires counsel to conduct a thorough and independent investigation of both the conviction and sentence. Habeas corpus counsel must promptly obtain the investigative resources necessary to examine both phases, including the assistance of a fact investigator and a mitigation specialist, as well as any appropriate experts.

b.

Habeas corpus counsel must obtain and read the entire record of the trial, including all transcripts and motions.

Counsel has an obligation to independently verify that the official record of all prior proceedings is complete, and to supplement it if necessary. Counsel must also inspect the evidence and obtain the files of trial and appellate counsel, scrutinizing them for what is missing as well as what is present. Counsel should interview prior counsel and members of the defense team.

c.

Because the mental vulnerabilities of many death row inmates increase the possibilities for error, habeas corpus counsel must take seriously the possibility of the capital client’s innocence, carefully analyze the quality of the prosecution’s case in aggravation, and investigate all possible defenses and potentially mitigating evidence.

d.

In short, habeas corpus counsel has a duty to make an independent examination of all of the available evidence – both that which the jury heard and that which it did not – to determine whether the jurors made a fully informed resolution of the issues at both guilt and punishment.

4. The Guilt-Innocence Phase Investigation a.

Habeas corpus counsel should conduct a guilt-innocence phase investigation regardless of any admission or 33

statement by the capital client about the facts of the crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be examined. Instead, counsel must independently investigate the circumstances of the crime and all evidence inculpating the client. Counsel should not assume the accuracy of the evidence admitted at trial. b.

Informal discovery requests should be made to law enforcement and the district attorney for additional documentation not contained within the district clerk’s file, such as: witness statements; police reports; physical evidence; search and arrest warrant documents; and any other information immediately available to permit commencement of the habeas investigation.

c.

Should the State not maintain a complete open file policy, formal discovery motions should be pursued to the Court for resolution and ruling. Counsel should further be aware that requests may be made for disclosure of District Attorney files through the Texas Attorney General’s Open Records Division.

d.

The assistance of a fact investigator with specialized training is indispensable to discovering and developing the facts that must be unearthed in habeas corpus proceedings.

e.

Habeas corpus counsel’s obligation to reinvestigate the case will require counsel to interview most, if not all, of the critical witnesses for the prosecution and investigate their backgrounds. Counsel must determine if a witness’s testimony bears scrutiny or whether motives for fabrication or bias were left uncovered at the time of trial.

f.

Habeas corpus counsel must also assess all of the non-testimonial evidence and consider whether to perform independent forensic testing, either because some technology, such as DNA testing, was unavailable at the time of trial, or because trial counsel failed to ensure that the necessary testing took place.

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g.

Habeas corpus counsel should seek out and interview potential witnesses who might challenge the prosecution’s version of events, including eyewitnesses or other witnesses having purported knowledge of events surrounding the offense; potential alibi witnesses; witnesses familiar with aspects of the capital client’s life history that might affect the likelihood that the client committed the offense or the degree of culpability for the offense.

h.

Habeas corpus counsel must attempt to obtain evidence and information in the possession of the prosecution or law enforcement authorities, including police reports, autopsy reports, photos, video or audio tape recordings, and crime scene and crime lab reports, together with the raw data forming the basis of any reports or conclusions, and any other physical evidence. Counsel should pursue such evidence and information through public information act requests to the appropriate government agencies, or through informal and formal discovery.

i.

Habeas corpus counsel has a duty to conduct additional investigation to determine whether racial discrimination tainted the imposition of the death penalty or the composition of the jury. Counsel should investigate whether minorities or women were underrepresented on the jury lists from which grand and petit juries were drawn.

j.

Habeas corpus counsel should maintain copies of media reports about the case to determine the effects of pretrial publicity, as well as to review the public statements of potential witnesses and other trial participants.

5. The Mitigation Investigation a.

Habeas corpus counsel must conduct a mitigation investigation regardless of the expressed desires of the capital client. Counsel may not conclude that a mitigation investigation would be futile, because counsel cannot responsibly advise a client about the merits of different 35

courses of action, the client cannot make informed decisions, and counsel cannot be sure of the client’s competency to make such decisions, unless counsel has first conducted a thorough investigation. b.

Habeas corpus counsel should not rely on his or her own observations of the capital client’s mental status as sufficient to detect the array of conditions (e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, lead poisoning, schizophrenia, mental retardation) that could be of critical importance. For that reason, at least one member of the defense team should be qualified to screen for mental or psychological disorders or defects and recommend further investigation of the client if necessary.

c.

Habeas corpus counsel should retain an independent mitigation specialist as a member of the defense team as soon as possible after appointment. The mitigation specialist should have the ability to: (i.) compile a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation, interviews, and collection of documents; (ii.) analyze the significance of the information in terms of impact on development, including effect on personality and behavior; (iii.) find mitigating themes in the client’s life history; (iv.) identify the need for assistance from mental health experts; (v.) assist in locating appropriate experts; (vi.) provide social history information to experts to enable them to conduct competent and reliable evaluations; and (vii.) work with the defense team and experts to develop a comprehensive and cohesive case in mitigation that could have been presented at trial.

d.

Habeas corpus counsel’s mitigation investigation should include a review of the capital client’s (i.) medical history (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays, and neurological damage); (ii.) family and social history (including physical, sexual, or emotional abuse; family history of mental illness, 36

cognitive impairments, substance abuse, or domestic violence; poverty, familial instability, neighborhood environment, and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one, or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities); (iii.) educational history (including achievement, performance, behavior, and activities) and special educational needs (including cognitive limitations and learning disabilities); (iv.) military service, (including length and type of service, conduct, special training, combat exposure, health and mental health services); (v.) employment and training history (including skills and performance, and barriers to employability); and (vi.) prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services). e.

Note: Counsel should be advised that, in obtaining a prisoner’s records from the Texas Department of Corrections, Institutional Division, some records can be found at the main Classification Division of the TDC in Huntsville, but also, other records are separately maintained at the Polunsky Unit, the Death Row facility, therefore any investigation or subpoena of records needs to be directed at both locations.

f.

Habeas corpus counsel should locate and interview the capital client’s family members (who may suffer from some of the same impairments as the client), and virtually everyone else who knew the client and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation, or parole officers, and others.

g.

Habeas corpus counsel should obtain releases for securing confidential records relating to all potentially relevant information about the capital client, his or her siblings and parents, and other family members, including but not 37

limited to school records, social service and welfare records, juvenile dependency or family court records, medical records, military records, employment records, criminal and correctional records, family birth, marriage, and death records, alcohol and drug abuse assessment or treatment records, and INS records. h.

Habeas corpus counsel must also investigate prior convictions and unadjudicated offenses that the prosecution presented as aggravating circumstances, or that otherwise came into evidence. If a prior conviction is legally flawed, counsel should seek to have it set aside.

Counsel may also find extenuating circumstances that can be offered to lessen the weight of a prior conviction or unadjudicated offense.

6. Making a Record a.

Habeas corpus counsel must demand on behalf of the capital client all resources necessary to provide high quality legal representation, to conduct a thorough investigation of both the conviction and sentence, to procure documentary evidence, and to retain experts. Because counsel should not have to disclose privileged communications or strategy to the prosecution in order to secure these resources, counsel must insist upon making such requests ex parte and in camera. If resources are denied, counsel should make an adequate record to preserve the issue for further review.

b.

Habeas corpus counsel must ensure that there is a complete record for every issue raised, including objections, motions, statements of grounds, oral and written arguments of both sides, discussions among counsel and the court, evidence proffered and received, rulings of the court, reasons given by the court for its rulings, and any agreements reached between the parties.

If a court refuses to allow a proceeding to be recorded, counsel should state the objection to the court’s refusal and, at the first available opportunity, make a record of what transpired in the unrecorded proceeding.

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c.

Habeas corpus counsel must file a written request for an evidentiary hearing on all disputed factual issues and provide the trial court with an in-depth explanation of why a hearing is necessary.

7. Presenting Legal Claims a.

Habeas corpus counsel must evaluate each potential claim in light of the near certainty that any claim not presented in the first state application for writ of habeas corpus will be waived or otherwise defeated by defenses such as procedural default or failure to exhaust. For this reason, counsel must be especially sensitive to the need to preserve all potential issues for later review by including them in the first state application for writ of habeas corpus.

b.

Habeas corpus counsel should consider every legal claim potentially available, and thoroughly investigate the basis for each potential claim before deciding not to include it in the first state application for writ of habeas corpus.

c.

Habeas corpus counsel has a duty to preserve issues calling for a change in existing precedent. Counsel should object to anything that appears unfair or unjust even if it involves challenging well-accepted practices and longstanding precedent.

d.

Habeas counsel should attach all available proof to the application (affidavits, documentary evidence, etc.) even though doing so is not technically required by state law.

Failing to attach proof in state court will likely waive the client’s ability to present it in federal court. When proof is unavailable, habeas counsel should plead all factual allegations with the greatest possible specificity.

e.

Habeas corpus counsel should consider the possible advantages to the capital client of asserting legal claims whose basis has only recently become known or available to counsel. Counsel should supplement claims previously 39

made with additional factual or legal information that comes to counsel’s attention, even if it occurs after the first state application for writ of habeas corpus has been filed.

8. Negotiating a Settlement a.

Habeas corpus counsel has an obligation to take all steps that may be appropriate in the exercise of professional judgment to achieve an agreed-upon disposition of the case. If a negotiated disposition would be in the best interest of the capital client, initial refusals by the prosecutor to negotiate should not prevent counsel from making further efforts to negotiate. Similarly, a client’s initial opposition should not prevent counsel from engaging in an ongoing effort to persuade the client to accept an offer of resolution that is in the client’s best interest.

b.

Habeas corpus counsel should consider making overtures to members of the victim’s family–possibly through an intermediary, such as a clergy member, victim liaison, or representative of an organization such as Murder Victim’s Families for Reconciliation–to ascertain their current feelings about the death penalty and the possibility of settling the case.

9. Facilitating Federal habeas Corpus Review a.

State habeas corpus counsel must file a motion for appointment of federal habeas counsel in federal district court immediately after the conclusion of state habeas corpus proceedings, as required by Section 2 of Article 11.071. Any delay in filing this motion may deprive the capital client of the right to federal review.

b.

If state habeas corpus counsel does not intend to continue representing the capital client in federal habeas corpus proceedings, state habeas corpus counsel must not cease acting on the capital client’s behalf until the federal district court has formally appointed new counsel. State habeas corpus counsel’s duty includes monitoring the case in federal district court and, if necessary, urging the federal 40

district court to appoint federal habeas corpus counsel as soon as possible after the termination of state habeas corpus proceedings.

C.

c.

Even after state habeas corpus counsel has been formally replaced, he or she owes a continuing duty of complete fidelity to the capital client. State habeas corpus counsel has a responsibility to cooperate with successor counsel in evaluating state habeas corpus counsel’s representation of the client.

d.

State habeas corpus counsel’s continuing duty to safeguard the interests of the capital client and cooperate fully with successor counsel includes, but is not limited to, maintaining the records of the case in a manner that will inform successor counsel of all significant developments relevant to the litigation; providing the client’s files, as well as information regarding all aspects of the representation, to successor counsel; sharing potential further areas of legal and factual research with successor counsel; and cooperating with such professionally appropriate legal strategies as may be chosen by successor counsel.

Duties of Clemency Counsel 1. Clemency counsel should be familiar with the procedures for, and permissible substantive content of, a request for clemency.

Clemency counsel should timely contact the Texas Board of Pardons and Paroles to determine the current and present rules and regulations for seeking clemency in death penalty cases.

Counsel are advised that these rules and regulations change on a regular basis, thus this immediate contact is absolutely necessary to ensure preparation and filing of proper documents that will be considered by the Board.

2. Clemency counsel should conduct an investigation in accordance with GUIDELINE 12.2.

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3. Clemency counsel should ensure that clemency is sought in as timely and persuasive a manner as possible, tailoring the presentation to the characteristics of the particular client, case and jurisdiction.

4. Clemency counsel should ensure that the process governing consideration of the client’s application is substantively and procedurally just, and, if it is not, should seek appropriate redress.

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PERFORMANCE GUIDELINES for JUVENILE REPRESENTATION IN DELINQUENCY PROCEEDINGS

Standing Committee on Legal Services to the Poor in Criminal Matters Adopted by the State Bar Board of Directors April 21, 2017

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PURPOSE AND SCOPE OF THE PERFORMANCE GUIDELINES The Guidelines are intended to serve several purposes. First and foremost, the Guidelines seek to encourage attorneys who represent juveniles in delinquency proceedings to perform to a high standard of representation, and to promote professionalism among attorneys who represent juveniles in delinquency proceedings.

The Guidelines are intended to alert counsel to courses of action that may be necessary, advisable, or appropriate, and thereby to assist counsel in deciding upon the particular actions that must be taken in each case to provide the juvenile client the best representation possible. The Guidelines are also intended to provide a measure by which the performance of individual attorneys may be evaluated and to assist in training and supervising attorneys. Finally, the Guidelines are intended to encourage counsel to provide zealous representation even if there is a culture in counsel’s jurisdiction of providing less than zealous representation.

The language of the Guidelines is general, implying flexibility of action appropriate to the particular situation at issue. Encouragement of attorneys’ use of judgment in deciding upon a particular course of action is reflected by the phrases “should consider” and “when appropriate.” When a particular course of action is appropriate in most circumstances, the Guidelines use the word “should.” When a particular action is absolutely essential to providing quality representation, the Guidelines use the words “shall” or “must.” In some instances, the Guidelines may call for a departure from local practices or may even seem to conflict with local procedures. In such cases, counsel should consult with lawyers, juvenile justice experts, ethics experts, and/or the commentary to the National Standards for guidance. If counsel determines that it is necessary to depart from a local practice in order to protect a client’s rights, preserve error and/or meet his ethical obligation to the client, he must do so.

These Guidelines specifically apply to juvenile defense practice in Texas state court from the time of initial representation in trial-level proceedings—recognizing that the impact of these proceedings may extend far beyond the Texas juvenile justice system—to the exhaustion of direct review before the Texas Supreme Court. In any particular case, the Guidelines begin to apply at the time an attorney-client relationship is formed. The Guidelines require counsel to advise clients of their right to seek federal review in appropriate circumstances, but do not extend to representation of juveniles in federal court.

Guideline 1.1 General Obligations of Defense Counsel Representing Juveniles A. The primary and most fundamental obligation of defense counsel is to provide competent, zealous, and diligent representation for the juvenile client throughout the entirety of the juvenile’s contact with the juvenile justice system to protect and advance the juvenile’s procedural and substantive rights. If personal matters make it impossible for counsel to fulfill the duty of zealous representation, counsel has a duty to refrain from representing the juvenile or to withdraw from representation if counsel has already entered an appearance in the case. Counsel’s personal opinion of whether the juvenile committed the alleged offense or of the juvenile’s need for rehabilitation is totally irrelevant. The juvenile’s financial status is of no significance; indigent juveniles are entitled to the same zealous representation as juveniles whose families are capable of paying for an attorney.

B. Counsel’s role in the juvenile court system is to fully elicit, protect, and advance the juvenile’s expressed interest and protect the juvenile’s procedural and substantive rights. Counsel may not substitute his own view of the juvenile’s best interest for the expressed interest of the juvenile.

Counsel represents only the interest of counsel’s juvenile client. Counsel does not represent the interest of the juvenile’s parents and counsel may not substitute the view of the juvenile’s parents for the expressed interest of the juvenile. When counsel believes the juvenile’s expressed interest will not achieve the best long-term outcome for the juvenile, counsel must provide juvenile with the necessary additional information for the juvenile to understand the potential outcomes and have the opportunity to fully consider his position. If the juvenile does not change his decision, counsel must continue to represent the juvenile’s expressed interest.

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C. Counsel also has an obligation to uphold the ethical standards of the State Bar of Texas and to act in accordance with the rules of the court.

D. Before agreeing to act as counsel or accepting appointment by a court in a particular matter, counsel has an obligation to confirm that counsel has available sufficient time, resources, knowledge, and the appropriate specialized experience necessary to offer quality representation to a juvenile in that matter.

If it later appears that counsel is unable to offer quality representation in the case due to a large caseload or any other reason, counsel should inform the court and move to withdraw.

E. Counsel must consult with the juvenile and provide representation at the earliest stage possible, continuing until the case is disposed and the deadlines for filing a motion for new trial or appeal have passed. If appointed to represent a juvenile, counsel has a duty to continue representation until the case is terminated, the family retains an attorney, or the court appoints a new attorney to the juvenile’s case. When appointed or retained to represent a juvenile client, counsel must make every reasonable effort to meet with the juvenile as soon as possible.

F. Counsel has the obligation to maintain regular contact with the juvenile and keep the juvenile informed of the progress of the case. Counsel should promptly comply with a juvenile’s reasonable requests for information, and reply to client correspondence and telephone calls. If a youth is in custody, counsel must visit on a regular basis. If a youth is out of custody, counsel must arrange out of court, face-to-face meetings.

G. Upon initial contact, counsel should provide the juvenile with an explanation of the defender’s role, the attorney-client privilege, and instructions not to talk to anyone about the facts of the case, including the juvenile’s parents and siblings, without first consulting with counsel. Counsel should make it clear to the juvenile and to the juvenile’s parents that the attorney-client protection does not extend to conversations that include the parents. Counsel should make clear to the juvenile and the juvenile’s parents if present that he is the client and that Counsel does not represent the juvenile’s parents/guardians and that being the client means that counsel will represent and advocate for what the juvenile says he wants.

H. Counsel should work to build a relationship with the client’s parent or guardian, as appropriate, and communicate with the parent or guardian throughout counsel’s representation of the client, as appropriate.

I.

Counsel should appear timely for all scheduled court appearances in a client’s case.

J. Counsel should spend appropriate time on each case regardless of whether counsel is appointed or retained. Counsel shall not provide preferential treatment to a retained client.

K. Counsel must be alert to, and advise the client of, all potential and actual conflicts of interest, such as if counsel has previously served as a prosecutor in proceedings against the client or a client’s family member.

L. Counsel generally should not agree to represent co-respondents.

M. If a conflict develops during the course of representation, counsel has a duty to notify the juvenile and, generally, the court. Notice must be provided to the court without disclosing any confidential information. Counsel has a duty to eliminate the conflict, and if he is unable to do that counsel has a duty to withdraw from the representation.

N. Though allowed by Texas law, acting as both guardian ad litem and defense attorney to the same juvenile presents a significant risk of a conflict of interest, as the former must ethically represent the best interest of the child and the latter has an ethical obligation to represent a child’s expressed 3

interest. When it is impossible to simultaneously meet both ethical obligations, counsel should refuse to take on both roles. If counsel thinks that the child’s best interest and express interest are in conflict, counsel should request the court to appoint a guardian ad litem.

O. Counsel has an obligation to keep and maintain a thorough, organized, and current file on each case.

P. If counsel withdraws from representation, counsel has an obligation to obtain the juvenile’s permission before delivering all contents of the client’s file, including all notes by counsel, to new counsel. Counsel shall timely respond to any reasonable request by new counsel regarding the case.

Guideline 1.2 Education, Training and Experience of Defense Counsel Representing Juveniles A. Prior to undertaking the defense of a juvenile accused of delinquency, counsel should have sufficient experience to provide competent, zealous, and diligent representation for the case. To provide competent, zealous, and diligent representation to juveniles requires specialized training, preparation, and education in both criminal law and the unique representation of juvenile clients. Counsel must be familiar with the substantive criminal law, the evidentiary rules of criminal procedure, the juvenile delinquency provisions of the Texas Family Code, and civil procedure and its application in the particular jurisdiction, including changes and developments in the law. Counsel must maintain research capabilities necessary for presentation of relevant issues to the court.

B. Counsel must also be skilled and experienced in all aspects of defense specific to representing youth.

Accordingly, counsel should participate in skills training and education programs in order to maintain and enhance skills. Counsel must be knowledgeable about adolescent development and other research that informs specific legal questions regarding the capacity of juveniles in legal proceedings, amenability to treatment, and culpability. Counsel should recognize when to consult experts. Counsel should be knowledgeable about the special status of youth in the legal system. Counsel should receive training regarding communicating with young clients in a manner that is developmentally appropriate and effective. Counsel should understand the consequences of juvenile adjudication and be familiar with the laws regulating child-serving institutions, including schools, social service providers, and mental health service providers.

C. Representation of juveniles in any case requires particular expertise, but representation of juveniles in unique circumstances or who face especially serious consequences requires even further expertise.

Such cases include those of juveniles with mental health or competency concerns, a developmental disability, or a language impairment, as well as those cases in which the juvenile faces adult certification, a placement or probation sentence of more than one year, a determinate sentence, a lifelong registration requirement, or immigration consequences. Counsel should accept such a case only after having had experience or training in less complex delinquency matters. When necessary, counsel should request the appointment of co-counsel.

D. If representing a juvenile with mental illness, a developmental disability, or a language impairment, counsel should become familiar with the symptoms of the juvenile’s disability or impairment and those symptoms’ potential impact on the juvenile’s culpability in the case and potential use as a mitigating factor during disposition. Counsel should also be familiar with how the juvenile’s illness may impact his communication with counsel and the attorney-client relationship. Counsel should also be familiar with the side effects of any medication the juvenile may be taking to treat the juvenile’s mental impairment and the impact those side effects may have on the juvenile’s culpability in the case or use as a mitigating factor during disposition.

E. Attorneys who represent juveniles who are at risk of being certified as an adult or are certified as adults should be familiar with the Performance Guidelines for Non-Capital Criminal Defense Representation adopted by the Texas State Bar Board of Directors in 2011.

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Guideline 1.3 Additional Obligations of Counsel Representing a Foreign National A. Counsel at every stage of the case should make appropriate efforts to determine whether any foreign country might consider the client to be one of its nationals.

B. Counsel representing a foreign national should: 1. Immediately determine if the client’s ability to communication with counsel, in English, is sufficient to allow counsel and the client to adequatly communicate. Counsel must recognize that some foreign nationals speak in dialects with which counsel may be unfamiliar, resulting in unintended miscommunication.

2. If there are any language conflicts, counsel should immediately request the court to appoint an appropriate interpreter to assist the defense in all stages of the proceeding, or counsel may request to withdraw due to language problems.

3. Advise the client of his or her right to communicate with the relevant consular office; 4. Consider whether it would benefit the client to contact the consular office. If counsel determines it could benefit the client, counsel should obtain the consent of the client to contact the consular office and inform it of the client’s detention or arrest. Counsel who is unable to obtain consent should exercise his or her best professional judgment under the circumstances.

C. Counsel should never act as a language interpreter for the client at a court proceeding. If the client needs a language interpreter, counsel should request an appropriate interpreter from the court.

Guideline 2.1 General Obligations of Counsel Pretrial A. When consistent with the juvenile’s expressed interest, counsel has an obligation to attempt to secure the prompt release from pretrial detention of the juvenile under the conditions most favorable and least restrictive to the juvenile. Counsel should make every effort to make contact with the juvenile in pretrial detention and to conduct an interview for the purposes of developing a pretrial release plan. If counsel has time to conduct a full initial interview at this stage, he should do so. Refer to Guideline 3.1.

B. Counsel should be familiar with alternatives to detention and should present those alternatives to the court, as well as a pretrial release plan that complies with the juvenile’s expressed interest.

C. Counsel shall arrange for a full initial interview with the juvenile as soon as practicable after being assigned to the juvenile’s case and completing a juvenile’s detention hearing. Refer to Guideline 3.1.

When necessary, counsel may arrange for a designee to conduct this initial interview. If the initial interview is completed by a designee, counsel shall interview the juvenile personally at the earliest reasonable opportunity.

D. When representing a juvenile prior to his initial hearing, or in the pretrial period after a juvenile’s initial detention hearing, counsel should insist on being present for any interview or questioning between the juvenile and law enforcement, state agents such as probation officers, and the Court to act as the juvenile’s observer, record-keeper, and advocate.

E. When counsel represents the juvenile during a pre-adjudication probation interview, or has the opportunity to prepare the juvenile prior to the interview, counsel must warn the juvenile, using developmentally appropriate language, that anything the juvenile says to the probation officer will likely be shared with the court and may be used for several purposes. Counsel must similarly prepare the juvenile’s parents and ask them to express their willingness to support the youth, which is a factor 5

weighed in intake decisions and often reported to the judge. When possible and appropriate, counsel should make every effort to be present at the probation interview.

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Guideline 2.2 Obligations of Counsel Regarding Detention Hearings A. If a juvenile is detained, counsel must represent the juvenile at a detention hearing, to be held (at the latest) the second working day after the youth is detained, or the first working day after detention if the youth is detained on a Friday or Saturday. Counsel must be familiar with the factors that the State must demonstrate in order to continue to detain the youth. When appropriate and consistent with the client’s expressed interest, counsel must attempt to secure the prompt release of the youth to the youth’s family or another close, trusted adult or relative if possible.

B. Prior to the hearing, counsel should consult with the juvenile and, when appropriate, with the juvenile’s parent. Counsel should conduct as much investigation as possible before the hearing to obtain material that can support a request for release. Counsel should review any detention risk assessments and be prepared to challenge the assessment findings if appropriate.

C. Prior to the hearing, counsel should reach out to the juvenile’s family to explain the proceedings, as well as to gauge their ability to support any pretrial release of the juvenile, and to explain to the parents that they must be present at the detention hearing.

D. Prior to the hearing, when able, counsel should request all relevant material from probation.

E. Counsel must comply with any order from the court pursuant to the Texas Family Code prohibiting counsel from revealing particular items in the predisposition materials to the juvenile or his parent, guardian, or guardian ad litem.

F. After conferring with client and clients’ parents, counsel should consider whether to request that detention proceedings be recorded. Counsel should consider the possibility of memorializing testimony with a potentially negative impact.

G. Counsel must be versed in state statutes, case law, detention risk assessment tools, and court practice regarding the use of detention and bail for young people. Counsel should be aware of and able to invoke research on the adverse impacts of detention on youth. Counsel should independently investigate the alternatives to secure detention and review these with the client and present to the court alternatives to detention and a pretrial release plan. Counsel should be familiar with and have visited the jurisdiction’s detention facilities.

H. At the detention hearing, counsel should preserve the juvenile’s rights by holding the state to its burden of establishing probable cause that the juvenile has engaged in delinquent conduct, conduct indicating a need for supervision, or conduct that violates an order of probation by the juvenile court and that the juvenile should remain detained because the applicable detention criteria has been met.

I.

If the juvenile has any special medical, psychiatric, or security needs, counsel should use those needs to advocate for the juvenile’s release. If counsel is unable to obtain pretrial release, and the juvenile remains detained, counsel should alert the court to any special medical, psychiatric, or security needs of the juvenile and request that the court direct the appropriate officials to take steps to meet such special needs. Counsel should consider making any communication to the court that is about a juvenile’s special needs and is made outside of the detention hearing in an ex parte communication to the court to protect the client’s confidentiality. Counsel should follow up with the juvenile regarding whether medications or treatments are being given in detention, and notify the court or relevant detention facility personnel if any problems arise.

J.

If counsel is appointed after the juvenile’s initial detention hearing, counsel should consider requesting a second detention hearing, which must take place within two days of the request.

K. Counsel should know the procedures for subsequent detention hearings, as well as any rules limiting 7

the amount of time youth may be detained in pretrial placements.

L. If counsel is unable to do the appropriate investigation before the juvenile’s detention hearing, counsel shall conduct that investigation as soon as possible after the hearing.

Guideline 3.1 Initial Interview The purpose of the initial interview is both to acquire information from the juvenile concerning pretrial release if the juvenile is detained, and also to provide the juvenile with information concerning the case, the pretrial process, and the charges and possible dispositions. Additionally, counsel should use this interview to begin establishing the trust and rapport necessary to form a good attorney-client relationship.

A. Preparation: After being assigned to a case and prior to conducting the initial interview, counsel should: 1. Ensure the interview takes place in a private setting away from the juvenile’s parents or any other person who is not a member of the defense team in order to demonstrate privacy and assure the juvenile that the communication is confidential; 2. Be familiar with the elements of the offense and the potential dispositions, if the charges against the client are already known; 3. Make an effort to obtain copies of any relevant documents that are available, including copies of any charging documents, recommendations, and reports made by pretrial services agencies concerning pretrial release, and law enforcement reports; and 4. If representing a client with mental illness, obtain reports from the detention center staff on the client’s mental health status at the time of booking into the detention center and the client’s current mental health status.

In addition, if the Client is detained, counsel should refer to Guidelines 2.1 and 2.2.

B. The Interview: 1. At this and all successive interviews and proceedings, counsel should make every effort to overcome barriers to communication, such as the juvenile’s age and cognitive development, as well as differences in language or literacy, disability, or different cultural backgrounds. When appropriate, counsel should file a motion to have a foreign language or sign language interpreter appointed by the court and present at the initial interview. Counsel should use developmentally appropriate language and take the time necessary to be sure the juvenile client has understood any exchange. Counsel should use the meeting as an opportunity to build trust.

2. In addition, counsel should obtain from the client, and the client’s parent/guardian if necessary, consent and all release forms necessary to obtain the client’s medical, psychological, educational, and other records as may be pertinent to the juvenile’s case.

3. In some jurisdictions, videoconferencing or teleconferencing is available for meeting with the client from a remote location rather than traveling to the detention center. However, videoconferencing or teleconferencing is not preferred for the initial interview and, because of the unique needs of juvenile clients and communications challenges posed as a consequence of their youth, should be used only as a last resort. Videoconferencing is never recommended for contact with juvenile clients who have a mental illness or developmental disability.

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4. Information that counsel should acquire from the client during the interview includes, but is not limited to: a. The client’s ties to the community, including length of time the client has lived at current and former residences, relationships with family, family history, education history and length of time at current school, any employment record and history, and immigration status if applicable; b. The client’s physical and mental health, educational, employment, and social security/disability records; c. Any necessary information waivers or releases that will assist in the client’s defense and preparation for disposition, including HIPAA (Health Insurance Portability and Accountability Act) compliant release in case medical records are required; d. The client’s immediate medical needs; e. The client’s prior arrests or delinquency findings, as well as any pending charges or outstanding probation terms; f.

The ability of the client and the client’s family to meet any conditions of pretrial release;

g. The names and contact information for individuals who can verify the client’s statements, and/or testify to the client’s strengths, as well as permission from the client to make contact; and h. Any other information that will assist counsel in his representation, including preparation for investigation, subsequent detention hearings, adjudication, and disposition.

5. While obtaining the information specified in item 4 above during the initial interview is important to preparation of the defense, counsel should recognize that depending on the juvenile’s maturity and mental state at the time of the initial interview, and the fact that they have not yet developed a trusting relationship, it may be difficult to obtain some of this information. Counsel will likely need to conduct more than one interview to gather this information. Counsel should obtain information from multiple sources.

C. Supplemental Information Whenever possible, counsel should use the initial interview to gather supplemental information, which should include, but is not limited to: 1. The facts surrounding the client’s arrest, including any photographs of excessive force or injury; 2. The client’s understanding of, and initial response to, the allegations being made; 3. Any evidence of improper police investigative practices or prosecutorial conduct that affects the client’s rights; 4. Any possible witnesses who should be located, including witnesses who may be relevant to detention, pretrial motions, fact, and disposition; 5. Any evidence that should be preserved; and 6. When appropriate, evidence of the client’s competence to stand trial or mental state at the time of the 9

offense.

Guideline 3.2 Role of Counsel with respect to Youth Fitness to Proceed A. Counsel must learn to recognize when a client’s ability to participate in his own defense may be compromised due to developmental immaturity, mental health disorders, or developmental/intellectual disabilities.

B. Counsel must assess whether the client’s level of functioning limits his ability to communicate effectively with counsel, as well as his ability to have a factual and rational understanding of the proceedings.

C. When counsel has reason to doubt the client’s fitness to proceed, counsel must gather additional information and consider filing a pre-adjudication motion requesting a hearing for a determination of unfitness to proceed; D. Counsel must be versed in the rules, statutes, and case law governing juvenile fitness to proceed.

E. Counsel must become familiar with experts qualified to assess fitness to proceed and learn the mechanisms for requesting a determination.

F. Counsel must learn the procedures for a hearing on the issue of fitness to proceed in his jurisdiction and fully comprehend the ramifications if the client is determined unfit to proceed.

G. Counsel must carefully weigh the consequences of moving forward with the case against the likely consequences of a finding of unfitness to proceed, and whether there are other ways to resolve the case, such as dismissal upon obtaining services for the client or referral to other agencies.

H. If counsel decides to proceed with a hearing on the issue of fitness to proceed, counsel must secure a qualified, independent expert to evaluate the client’s competence. Counsel must then advise the client in developmentally appropriate language about the evaluation and proceedings, analyze the results of the evaluation, prepare the expert for testimony, and prepare his case substantively and procedurally for the hearing. Counsel must advise the client about the content of the hearing and assist the client in navigating the complexities of the proceedings.

Guideline 3.3 Role of Counsel with respect to Certification Hearings A. Counsel must know under what conditions prosecutors can seek to certify or transfer youth to adult court.

B. Counsel must, consistent with the client’s expressed interest, try to prevent adult prosecution of the client.

C. Counsel must receive the certification report, including the diagnostic study, social evaluation, and other reports requested by the court prior to the certification hearing or request a continuance for time to receive and review the report.

D. Counsel must comply with any order from the court pursuant to the Texas Family Code prohibiting counsel from revealing particular items in the certification materials to the juvenile or his parent, guardian, or guardian ad litem.

E. If the prosecutor ultimately files a petition with the juvenile court to transfer the case to adult court, counsel must insist on a certification hearing and must insist that the hearing is recorded to protect the client’s due process rights.

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F. Counsel must seek to obtain and review any probation report developed prior to the certification hearing.

G. At the certification hearing, counsel must: 1. Present all facts, mitigating evidence, and testimony that may convince the court to keep the client in juvenile court, including the client’s actual age, maturity, role in the alleged crime, any history of mental illness or trauma, and amenability to treatment, as well as the seriousness of the offense and the availability of youth-specific treatment options in juvenile court; 2. Consider the use of expert witnesses to raise the client’s capacity to proceed in adult court, the client’s amenability to rehabilitation in juvenile court, and any related developmental issues, and request that the court appoint such an expert; 3. Seek a determination of whether the prosecutor has probable cause to believe the juvenile committed the offense; 4. Challenge any defect in the charges that would deprive the adult court of jurisdiction; 5. Raise any credible facial or “as applied” state or federal challenges to adult prosecution; 6. Hold the state to its burden to demonstrate that certification is appropriate; and 7. Insist the court state a basis for its finding in a written order and that the court consider the statutory factors when making that determination.

H. In the case where the client is a person charged in juvenile court who is over 18 years old and the prosecution is seeking transfer to adult court for a crime alleged to have occurred before the client’s 17th birthday, counsel must hold the prosecution to its burden to demonstrate that there was reason beyond the control of the state not to bring charges or complete the proceedings before the client’s 18th birthday.

Guideline 3.4 Prosecution Requests for Non-Testimonial Evidence Counsel should be familiar with and understand the law governing the prosecution’s power to require a client to provide non-testimonial evidence, such as handwriting exemplars and physical specimens, the circumstances in which a client may refuse to do so, the extent to which counsel may participate in the proceedings, and the record of the proceedings required to be maintained.

Guideline 4.1 Investigation A. Counsel has a duty to conduct, or secure the resources to conduct, an independent case review and investigation as promptly as possible. Counsel should be familiar with laws and guidelines governing discovery. See Guideline 4.2. Counsel should, regardless of the client’s wish to enter a plea of true, determine whether the charges are factually and legally correct and inform the client of potential defenses to the charges. Counsel should explore all avenues leading to facts relevant both to the adjudication and to the disposition in the event of a delinquency finding. In no case should counsel delay a disposition phase investigation based on the belief that the client will not be adjudicated delinquent or that the charges against the client will otherwise be dismissed.

B. Sources of review and investigative information should include the following: 1. Allegation documents, statutes, and case law 11

The directive to apprehend, allegations, and offense report, along with any supporting documents used to establish probable cause, should be obtained and examined to determine the specific allegations that have been brought against the client. The relevant statutes and precedents should be examined to identify: a. The elements of the offense with which the client is charged; b. The defenses, ordinary and affirmative, that may be available, as well as the proper manner and timeline for asserting any available defenses; c. Any lesser included offenses that may be available; d. Any defects in the charging documents, constitutional or otherwise, such as statute of limitations or double jeopardy; and e. Whether the allegations requires determinate disposition and the applicable disposition options for the particular allegations.

2. The client If not previously conducted, an in-depth interview of the client should be conducted as soon as possible and appropriate after appointment or retention of counsel. The interview with the client should be used to obtain information relevant to the client’s social history as described above in Guideline 3.1. Information relevant to disposition also should be obtained from the client. To that end, counsel will usually need to conduct multiple interviews with the client.

3. Potential witnesses Counsel should interview all potential witnesses, including any complaining witnesses, others adverse to the client, and witnesses favorable to the client. If counsel conducts interviews of potential witnesses adverse to the client, counsel should attempt to do so in the presence of an investigator or other third person in a manner that permits counsel to effectively impeach the witness with statements made during the interview.

4. The police and prosecution Counsel should utilize available discovery procedures to secure information related to the client’s case in the possession of the prosecution or law enforcement authorities, including police reports.

5. The courts Counsel should request and review any tapes or transcripts from previous hearings in the case.

Counsel should also review the client’s prior court file(s).

6. Information in the possession of third parties Counsel should seek a release or court order to obtain necessary confidential information about the client, co-respondent(s), witness(es), or victim(s) that is in the possession of third parties. Counsel should be aware of privacy laws and other requirements governing disclosure of the type of confidential information being sought.

7. Physical Evidence Counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant to the offense or disposition, regardless of whether the prosecutor has tendered such reports, and should examine any such physical evidence. Upon completion of the inspection of the physical evidence, counsel should determine whether independent analysis or testing of the evidence is appropriate and, if so, seek the services of a qualified expert to complete such analysis or testing.

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8. The scene Counsel or an investigator should view the scene of the alleged offense, making an effort to do so as soon as possible after counsel is appointed or retained. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, lighting conditions, and seasonal changes). Counsel should consider the taking of photographs and the creation of diagrams or charts of the actual scene of the offense.

9. Expert Assistance Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a. Prepare the defense; b. Adequately understand the prosecution’s case; c. Rebut the prosecution’s case or provide evidence to establish any available defense; d. Investigate the client’s fitness to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e. Mitigate any punishment that may be assessed after a verdict or plea of true to the alleged offense.

10. Mental Health Records If representing a client with mental illness or a developmental disability, counsel should seek available mental health records (e.g., records of previous court cases in which mental health issues may have been raised; mental health treatment records, whether institutional or in the community; school records). Counsel should consider obtaining these records using a HIPAA (Health Insurance and Portability Act) release instead of a subpoena in order to maintain client confidentiality. Where an agency refuses to release protected or sensitive information without a subpoena, counsel should request the court to order the response to be submitted directly to counsel.

C. During case preparation and throughout adjudication, counsel should identify potential legal issues and the corresponding objections. Counsel should consider the tactics of when and how to raise those objections. Counsel also should consider how best to respond to objections that could be raised by the prosecution.

Guideline 4.2 Formal and Informal Discovery A. Counsel has a duty to pursue formal discovery procedures provided by the rules of the jurisdiction and such informal discovery methods as may be available. Counsel should pursue formal and informal discovery as soon as practicable and to the extent reasonably necessary to zealously and effectively represent the client. Counsel should file a request for discovery in compliance with statutory discovery requirements as soon as practicable upon beginning representation of the client.

B. Counsel should seek discovery of the following items, if they exist: 1. Potential exculpatory information; 2. Potential mitigating information; 3. Potential favorable information; 13

4. The names and addresses of all prosecution witnesses, their prior statements, and criminal record, if any; 5. Any other information that may be used to impeach the testimony of prosecution witnesses; 6. All oral or written statements by the client, and the details of the circumstances under which the statements were made; 7. The prior juvenile record of the client and any evidence of other misconduct that the government may intend to use against the client; 8. Statements made by co-respondents; 9. Statements made by other potential witnesses; 10. All official reports by all law enforcement and other agencies involved in the case, e.g., police, school, arson, hospital, results of any scientific test(s); 11. All records of evidence collected and retained by law enforcement; 12. All video/audio recordings or photographs relevant to the case, as well as all recordings of transmissions by law enforcement officers, including radio and computer transmissions; 13. All books, papers, documents, tangible objects, buildings or places, or copies, descriptions, or other representations or portions thereof, relevant to the case; 14. All results or reports of relevant physical or mental examinations, and of scientific tests or experiments, or copies thereof; 15. All physical and forensic lab evidence in custody of law enforcement, including samples of evidence that has the potential to dissipate; and 16. A written summary of any expert testimony the prosecution intends to use in its case-in-chief at trial.

C. Counsel should seek prompt compliance with all formal discovery requests and sanctions for failure to comply.

D. Counsel should timely comply with all of the requirements governing disclosure of evidence by the client and notice of defenses and expert witnesses. Counsel should be aware of the possible sanctions for failure to comply with those requirements.

Guideline 4.3 Theory of the Case During investigation and trial preparation, counsel should develop and continually reassess a theory of the case from which to organize the facts and legal basis of the defense, create a strategy, and determine subsequent actions. Similarly, counsel should also develop strategies for advancing appropriate defenses and mitigating factors, including those related to mental health, on behalf of the client.

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Guideline 5.1 Deciding Whether to File Pretrial Motions A. Counsel must consider filing all appropriate pretrial motions whenever a good faith reason exists to believe that the client is entitled to relief that the court has discretion to grant. Counsel should consider whether pursuing a particular pretrial motion is necessary to protect the client’s rights against later claims of waiver or procedural default. In making this decision, counsel should remember that a motion may have many objectives in addition to the ultimate relief requested by the motion. Counsel should thus consider whether: 1. The deadline for filing pretrial motions warrants filing a motion to preserve the client’s rights, pending the results of further investigation; 2. Changes in the governing law might occur after the filing deadline that could enhance the likelihood that relief ought to be granted; 3. Later changes in the strategic and tactical posture of the defense case may occur that affect the significance of potential pretrial motions; and 4. Whether a pretrial motion is a good opportunity to introduce the court to issues, such as adolescent brain development, that impact a child’s actions.

B. The decision to file pretrial motions should be made after thorough investigation, and after considering the applicable law in light of the circumstances of each case. Among the issues that counsel should consider addressing in a pretrial motion are: 1. The pretrial custody of the client and the filing of a motion to review conditions of release; 2. The competency of the client; 3. The constitutionality of the relevant statute or statutes; 4. Potential defects in the charging process; 5. The sufficiency of the charging document; 6. Severance of charges or respondents; 7. The discovery obligations of the prosecution; 8. The suppression of evidence gathered as the result of violations of the Fourth, Fifth, Sixth, or Fourteenth Amendments to the United States Constitution, or corresponding or additional state constitutional provisions and statutes, including: a. The fruits of illegal searches or seizures; b. Any statements that do not comply with the requirements of the Texas Family Code; c. Involuntary statements; d. Statements obtained unreliably or in violation of the client’s right to counsel or privilege against self-incrimination; and e. Unreliable identification evidence that would give rise to a substantial likelihood of irreparable misidentification.

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9. Change of venue; 10. Access to resources or experts that may be denied to the client because of the client’s indigence; 11. The client’s right to a speedy trial; 12. The client’s right to a continuance in order to adequately prepare or present the client’s case; 13. Matters of trial evidence that may be appropriately litigated by means of a pretrial motion; and 14. Matters of trial or courtroom procedure.

C. Counsel should request a full evidentiary hearing on any pretrial motion to preserve the issue adequately for appellate review, and must prepare for a motions hearing as he would for trial, including preparing the presentation of evidence and examination of witnesses.

D. Counsel should consider the advisability of filing a motion to disqualify or substitute the presiding judge. This consideration should include any information about the judge’s history in aligning with the prosecution on motion rulings, any routine refusals of plea bargains, the client’s experience with the judge, and any specific dislike of counsel, other defense counsel, or defense counsel in general. The decision to disqualify a judge shall only be made when it is a reasoned strategy decision and will benefit the client. The final decision rests with counsel.

E. Any motions that contain requests or agreements to continue a trial date should be discussed with the client and client’s parent or guardian before they are made.

F. Motions and writs should include citations to applicable state and federal law in order to protect the record for collateral review in federal courts.

Guideline 5.2 Filing and Arguing Pretrial Motions A. Counsel should file any and all appropriate pretrial motions. Motions should be filed in a timely manner in accordance with statute and local rule, should comport with the formal requirements of the court rules, and should succinctly inform the court of the authority relied upon. In filing a pretrial motion, counsel should be aware of the effect the filing might have upon the client’s speedy trial rights.

B. Prior to any pretrial hearing at which the client is present, counsel must communicate to the client in developmentally appropriate language what is likely to happen before, during, and after the hearing.

Counsel should provide the client with clear instructions about courtroom attire and conduct. Counsel should determine whether the proceedings should be public or private and request private proceedings if appropriate.

C. If a hearing on a motion requires the taking of evidence, counsel’s preparation for the evidentiary hearing should include: 1. Investigation, discovery, and research relevant to the claim advanced; 2. The subpoenaing of all helpful evidence and the subpoenaing and preparation of all helpful witnesses; 3. Full understanding of the burdens of proof, evidentiary principles, and trial court procedures applicable to the hearing, including the benefits and potential consequences and costs of having

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the client testify; 4. The assistance of an expert witness when appropriate and necessary; 5. Familiarity with all applicable procedures for obtaining evidentiary hearings prior to trial; and 6. Preparation and submission of a memorandum of law when appropriate.

D. In every case that proceeds to adjudication, counsel should file timely and appropriate motions in limine to prohibit improper prosecutorial practices and to shield the jury or the judge from potentially improper evidence. Counsel should remain aware that the granting of a motion in limine alone will not preserve error on appeal.

E. Counsel should request that any pretrial hearing, argument, or ruling is on the record or in writing.

F. Counsel has a continuing duty to raise any issue that was not raised before adjudication, because the facts supporting the motion were not reasonably available at that time. Further, counsel shall be prepared, when appropriate, to renew a pretrial motion if new supporting information is disclosed in later proceedings.

G. When appropriate, counsel should file an interlocutory appeal from the denial of a pretrial motion.

H. When negotiating the entry of a plea of true, counsel should consider reserving the right to appeal the denial of a pretrial motion.

Guideline 6.1 The Plea Negotiation Process and the Duties of Counsel A. The ultimate decision as to whether or not to accept a negotiated plea of true lies with the client.

B. Counsel should obtain the consent of the client before entering into any plea negotiation. Exploratory inquiries of the prosecution prior to obtaining client consent are permitted.

C. Prior to advising the client on whether to accept a plea agreement, counsel must have conducted appropriate investigation and completed an assessment of the strength of the state’s case, as well as possible defenses, including an analysis of controlling law and the evidence likely to be introduced at trial. See Guideline 4.1.

D. After appropriate investigation and case review, counsel should explore with the client in developmentally appropriate language the possibility and desirability of pursuing a plea rather than proceeding to trial. Counsel should explain to the client those decisions that ultimately must be made by the client, as well as the advantages and disadvantages inherent in those choices. The decisions that must be made by the client after full consultation with counsel include whether to enter a plea of true or not true, whether to accept a plea agreement, and whether to testify at the plea hearing. Counsel should ensure the client understands all the consequences of a decision to accept a plea agreement and all the rights that decision waives. Counsel should also explain to the client the impact of the decision to enter a plea of true on the client’s right to appeal. Counsel shall at all times render candid advice.

E. Counsel should keep the client fully informed of any continued plea discussions and negotiations and promptly convey to the client any offers made by the prosecution for a negotiated settlement. Counsel may not accept any plea agreement without the client’s express authorization.

F. Counsel should explain to the client’s parents any role they would play in a plea agreement and the subsequent disposition, while respecting the duty of confidentiality the attorney owes the juvenile.

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G. The existence of ongoing tentative plea negotiations with the prosecution should not prevent counsel from taking steps necessary to prepare a defense.

H. Counsel should confirm that all conditions and promises comprising a plea agreement between the prosecution and defense are included in writing or in the transcript of the plea.

I.

In developing a negotiation strategy, counsel should try to discern the position of any alleged victim with respect to adjudication and disposition. In this regard, counsel should: 1. Consider whether interviewing the alleged victim or victims is appropriate and, if so, who is the best person to do so and under what circumstances; 2. Consider to what extent the alleged victim or victims might be involved in the plea negotiations; 3. Be familiar with any rights afforded the alleged victim or victims under the Victim’s Rights Act or other applicable law, as well as limitations; and 4. Be familiar with the practice of the prosecutor or victim-witness advocate working with the prosecutor and to what extent, if any, the prosecution defers to the wishes of the alleged victim.

J. In conducting plea negotiations, counsel should be familiar with: 1. The various types of pleas that may be agreed to, including a plea of true; 2. The advantages and disadvantages of each available plea according to the circumstances of the case, including whether or not the client is mentally, physically, and financially capable of fulfilling requirements of the plea negotiated; 3. Whether the plea agreement is binding on the court and detention authorities; 4. Possibilities of pretrial diversion, deferred prosecution and specialty courts; and 5. Any recent changes in the applicable statutes or court rules and the effective dates of those changes.

Guideline 6.2 The Contents of the Negotiations A. In conducting plea negotiations, counsel should become familiar with any practices and policies of the particular jurisdiction, judge, and prosecution that may impact the content and likely results of a negotiated plea agreement.

B. In order to develop an overall negotiation plan, counsel should be fully aware of, and review with the client in developmentally appropriate language, all short- and long-term consequences of accepting the plea, including: 1. Whether the charges carry the possibility of a determinate disposition and the length of any determinate disposition, as well as any fines or restitution that may be ordered; 2. The potential for recidivist disposition, including habitual offender statutes and disposition enhancements, and all other applicable disposition statutes or case law; 3. If a plea involving juvenile probation is under consideration, the permissible conditions of probation with which the client must comply in order to avoid probation modification;

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4. Any registration requirements including sex offender registration and any collateral consequences of that registration; 5. The availability of appropriate diversion and rehabilitation programs; 6. The possible and likely place and manner of confinement; 7. Deportation and other possible immigration consequences that may result from the plea; 8. Other potential consequences of a delinquency finding including, but not limited to: consequences at the juvenile’s school including suspension or expulsion, suspension of a motor vehicle operator’s license, denial of federal student loan eligibility, conditions associated with a sex offense, enhancements in future adjudications in juvenile court or criminal prosecutions in adult court, and potential federal prosecutions; 9. The effect on appellate rights; and 10. That plea bargains are not binding on the court.

C. Counsel should proactively discuss with the client whether immigration consequences are a concern, investigate the immigration consequences of potential pleas, and request the court appoint an immigration expert to advise the client if appropriate.

D. In developing a negotiation strategy, counsel should be completely familiar with: 1. Concessions that the defense might offer the prosecution as part of a negotiated settlement, including, but not limited to: a. Declining to assert or litigate any particular pretrial motions; b. Agreeing to fulfill specified restitution conditions or to participate in community work or service programs, or in rehabilitation or other programs; c. Providing the prosecution with assistance in prosecuting or investigating the present case or other alleged delinquent behavior; and d. Foregoing appellate remedies.

2. Benefits the client might obtain from a negotiated settlement, including, but not limited to an agreement: a. That the prosecution will not oppose the client’s release from detention pending disposition or appeals; b. That the client may enter a conditional plea to preserve the right to litigate and contest certain issues affecting the validity of an adjudication; c. To dismiss or reduce one or more of the charged offenses either immediately, or upon completion of a deferred prosecution agreement; d. That the client will not be subject to further investigation or prosecution for uncharged alleged delinquent conduct related to the case at hand; e. That the client will receive, with the agreement of the court, a specified disposition or sanction 19

or a disposition or sanction within a specified range; f.

That the prosecution will take, or refrain from taking, at the time of disposition or in communications with the preparer of the official predisposition report, a specified position with respect to the sanction to be imposed on the client by the court;

g. That the prosecution will not present, at the time of disposition or in communications with the preparer of the official predisposition report, information specified by counsel; and h. That the client will receive, or the prosecution will recommend, specific benefits concerning the client’s placement or manner of confinement or release and the information concerning the client’s offense and alleged behavior that may be considered in determining the client’s date of release from detention.

3. The client’s and the client’s parents’ ability to comply with the court’s conditions and the consequences of failing to do so.

E. Counsel should ensure that the client has sufficient time to fully consider any proposed plea.

Guideline 6.3 Counsel’s Obligations to Client Considering a Plea Agreement Counsel shall make it clear to the client in developmentally appropriate language that the client must make the ultimate decision of whether to enter a plea of true. Counsel should investigate and explain to the client in developmentally appropriate language the prospective strengths and weaknesses of the case for the prosecution and defense, including the availability of prosecution witnesses (if known), relevant concessions and benefits subject to negotiation, and possible consequences of a delinquency finding after adjudication. Counsel should not base a recommendation of a plea of true solely on the client’s acknowledgement of committing an offense or solely on a favorable disposition offer. The decision to enter a plea of true rests solely with the client, and counsel should not attempt to unduly influence that decision. However, counsel should advise the client of the benefits and risks of each course of action. If the client’s expressed interest as to the plea decision conflicts with counsel’s belief, counsel shall nonetheless advocate for the client’s expressed interest. Counsel should inform the client of any tentative negotiated agreement reached with the prosecution and explain to the client in developmentally appropriate language the full content of the agreement, as well as the advantages and disadvantages and potential direct and collateral consequences of the agreement. Counsel shall advise the client if the agreement carries a risk that the client will be deported and the extent of that risk if it is clear. Counsel shall ensure that client’s acceptance of any plea is knowing, intelligent, and voluntary.

Guideline 6.4 Entering the Plea Agreement A. Prior to entering the plea agreement, counsel must: 1. Advise the client in developmentally appropriate language that nothing heard by the judge regarding the plea can be heard in any other hearing in the case if the judge rejects the agreed plea; 2. Prepare the client for the role the client will play in the hearing, including answering questions from the judge and providing a statement concerning the offense; 3. If the plea is a non-negotiated plea, inform the client that once the plea has been accepted by the court, it may not be withdrawn after the disposition has been pronounced by the court; and 4. Advise the juvenile of his right to have the records sealed.

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B. When entering the plea, counsel should confirm that the full content and conditions of the plea agreement are placed on the record before the court.

C. If, during the plea colloquy, it becomes clear to counsel that the client does not understand the proceedings, counsel must request a recess or a continuance to talk to the client.

D. After entry of the plea, counsel should be prepared to address the issue of release pending disposition if disposition is set for a different day. If the client has been released pending adjudication, counsel should be prepared to argue and persuade the court that the client’s continued release is warranted and appropriate. If the client is in custody prior to the entry of the plea, counsel should, when practicable, advocate for and present to the court all reasons warranting the client’s release pending disposition.

E. Subsequent to the acceptance of the plea, counsel should make every effort to review and explain the proceedings with the client in developmentally appropriate language and to respond to any client questions and concerns.

Guideline 7.1 General Preparation for Adjudication A. Throughout preparation and adjudication, counsel should consider the theory of the defense and make decisions and act in a manner consistent with that theory.

B. The decision to seek to proceed with or without a jury during both the adjudication phase of the trial rests solely with the client after consultation with counsel. Counsel should discuss in developmentally appropriate language the strategic considerations relevant to this decision with the client, including the availability of different disposition options depending on whether disposition is assessed by a judge or jury. Counsel has an obligation to advise the court of the client’s decision in a timely manner.

C. Counsel should have completed investigation, discovery, and research in advance of adjudication such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. Refer to Guidelines 4.1 and 4.2.

D. Counsel should have prepared all potential witnesses prior to adjudication, and subpoenaed all necessary witnesses before adjudication, if appropriate.

E. When appropriate, counsel should prepare the following materials to be available at the time of trial: 1. Copies of all relevant documents filed in the case; 2. Relevant documents prepared by investigators; 3. Relevant documents provided by the prosecution; 4. Reports, test results, and other materials subject to disclosure; 5. Voir dire topics, plans, or questions; 6. An outline or draft of counsel’s opening statement; 7. Cross-examination plans for all possible prosecution witnesses; 8. Direct examination plans for all prospective defense witnesses; 9. Copies of defense subpoenas and defense subpoena returns;

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10. Prior statements of all prosecution witnesses (e.g., transcripts, police reports, investigator memos); 11. Prior statements of all defense witnesses; 12. Reports from defense experts; 13. A list of all defense exhibits, and the witnesses through whom they will be introduced; 14. Originals and copies of all documentary exhibits; 15. Proposed jury instructions, with supporting case citations if available; 16. A list of the evidence necessary to support defense requests for jury instructions; 17. Copies of all relevant statutes and cases; and 18. An outline or draft of counsel’s closing argument, which will evolve over the course of the trial.

F. If counsel or the prosecution will seek to introduce an audio or video tape or a DVD of a police interview or of any other event, counsel should consider whether a transcript of the recording should be prepared and how the relevant portions of the recording will be reflected in the appellate record by stipulating those matters with the prosecution.

G. Counsel should be familiar with the rules of evidence, the law relating to all stages of the adjudication process, and any legal and evidentiary issues that can be reasonably anticipated to arise at adjudication.

H. Counsel should decide if it is beneficial to secure an advance ruling on evidentiary issues likely to arise during adjudication (e.g., use of prior adjudications to impeach the juvenile) and, when appropriate, counsel should prepare motions and memoranda for such advance rulings.

I.

In preparing for cross-examination, counsel should be familiar with the applicable law and procedures concerning cross-examination and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, counsel should be prepared to question witnesses as to the existence of prior statements that they may have made or adopted, and should consider doing so outside the presence of the jury

J. Counsel should be aware of the right to request a district judge in a county where the assigned judge is not elected and not an attorney, and enforce that right when appropriate.

K. Throughout the adjudication process, counsel should endeavor to establish a proper record for appellate review. To prepare, counsel must be familiar with the substantive and procedural law regarding the preservation of legal error for appellate review, and make a record sufficient to preserve appropriate and potentially meritorious legal issues for such appellate review unless there are strategic reasons for not doing so. As part of this effort, counsel should request, whenever necessary, that all trial proceedings, including voir dire, be recorded.

L. Prior to trial, counsel should fully explain the trial process, beginning with jury selection, to the client.

Counsel should advise the client as to suitable courtroom dress and demeanor, making sure the client knows that the jury/judge will always be paying attention to his actions. If the client is detained, counsel should be alert to the possible prejudicial effects of the client appearing before the jury in detention facility clothing. When necessary, counsel should file pretrial motions seeking appropriate clothing for the client and that court personnel follow appropriate procedures so as not to reveal to jurors that the client is detained. Counsel should attempt to prevent the client from enduring any form

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of physical restraint, such as shackling, during the adjudication process.

M. Counsel should plan with the client the most convenient system for conferring throughout the trial.

Counsel should supply the client with pen and paper to take and write notes during the trial. In instances where client is detained, counsel should seek a court order to have the client available for conferences.

N. If, during the trial, it appears to counsel that concessions to facts or offenses are strategically indicated, such concessions should be discussed with the client in developmentally appropriate language before they are made.

O. Counsel should be familiar with direct and collateral consequences of adjudication, including shortterm and long-term consequences, such as: 1. The possible and likely place and manner of confinement; 2. Any possible consequences for clients involved in the child welfare system; 3. Any registration requirements, including sex offender registration, and any collateral consequences of that registration; 4. The possibility that an adjudication or admission of the offense could be used for crossexamination or advanced consequences in the event of future delinquency cases or criminal cases in adult court; 5. Deportation and other possible immigration consequences that may result from the adjudication; and 6. Other potential consequences of a delinquency finding including, but not limited to: consequences at the juvenile’s school including suspension or expulsion; suspension of a motor vehicle operator’s license; denial of federal student loan eligibility; conditions associated with a sex offense; use in future adjudications in juvenile court or possible enhancements in criminal prosecutions in adult court; and potential federal prosecutions.

Guideline 7.2 Voir Dire and Jury Selection A. Preparation 1. Counsel should be familiar with the procedures by which both petit and grand jury venires are selected in the particular jurisdiction and should be alert to any potential legal challenges to the composition or selection of the venires.

2. Counsel should be familiar with local practices and the individual judge’s procedures for selecting a jury from a panel of the venire, and should be alert to any potential legal challenges to those procedures. Counsel should be familiar with the law concerning voir dire inquiries so as to be able to defend any request to ask particular questions of prospective jurors.

3. Prior to jury selection, counsel should seek to obtain a prospective juror list and the standard jury questionnaire if feasible, and counsel should seek access to and retain the juror questionnaires that have been completed by potential jurors, as well as criminal history checks or other information relating to the prospective jurors in the State’s possession. Counsel should also consider requesting use of a separate questionnaire that is tailored to the client’s case and should determine the court’s method for tracking juror seating and selection.

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4. Counsel should tailor voir dire questions to the specific case. If appropriate, counsel should develop and file in advance of trial written voir dire questions that counsel would like asked in open court. Among the purposes voir dire questions should be designed to serve are the following: a. To elicit information about the attitudes of individual jurors, which will inform counsel and client about peremptory strikes and challenges for cause; b. To determine jurors’ attitudes toward legal principles that are critical to the defense, including, when appropriate, the client’s decision not to testify; c. When permitted, to preview the case for the jurors so as to lessen the impact of damaging information that is likely to come to their attention during the trial; d. To present the client and the defense case in a favorable light, without prematurely disclosing information about the defense case to the prosecution; and e. To establish a relationship with the jury when the voir dire is conducted by counsel.

5. Counsel should be familiar with the law concerning challenges for cause, peremptory strikes, and requests for additional strikes. Counsel should also be aware of state and federal law concerning whether peremptory challenges need to be exhausted in order to preserve for appeal any challenges for cause that have been denied: 6. When appropriate, counsel should consider whether to seek expert assistance in the jury selection process.

7. Counsel should consider seeking assistance from a colleague or a defense team member to record venire panel responses and to observe venire panel reactions. Counsel should also communicate with the client regarding the client’s venire panel preferences.

B. Examining the Prospective Jurors 1. Counsel should take all steps necessary to protect the voir dire record for appeal, including filing a copy of proposed voir dire questions not allowed by the court or reading such proposed questions into the record.

2. If the voir dire questions may elicit sensitive answers, counsel should consider requesting that questioning be conducted outside the presence of the remaining jurors.

3. In a group voir dire, counsel should avoid asking questions that may elicit responses that are likely to prejudice other prospective jurors or be prepared to examine such prejudices with the panel and address them appropriately.

4. Counsel should be familiar with case law regarding the client’s right to be present during individual voir dire. Counsel should fully discuss the risks and benefits of waiving this right with the client. Where anything occurs outside of the client’s presence, counsel should request the opportunity to explain what happened to the client.

5. Every part of jury selection should be on the record, including in-chambers discussions. Where something occurs outside of the record, counsel must put an account on the record at the earliest possible opportunity.

C. Challenges

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1. Counsel should consider challenging for cause all persons about whom a legitimate argument can be made for actual prejudice or bias relevant to the case when it is likely to benefit the client.

2. If challenges for cause are not granted, counsel should consider exercising peremptory challenges to eliminate such jurors.

3. In exercising challenges for cause or peremptory strikes, counsel should consider both the panelists who may replace a person who is removed and the total number of peremptory challenges available.

4. Counsel should make every effort to consult with the client in exercising challenges.

5. Counsel should be alert to prosecutorial misuse of peremptory challenges and should seek appropriate remedial measures.

6. Counsel should object to and preserve all issues relating to the unconstitutional exclusion of jurors by the prosecution.

7. Counsel should make every effort to preserve error in voir dire by urging proper objection or instruction.

Guideline 7.3 Opening Statements A. Defense Counsel’s Opening Statement 1. Prior to delivering an opening statement, counsel should ask for sequestration of witnesses, unless a strategic reason exists for not doing so.

2. Counsel should be familiar with the law of the jurisdiction and the individual trial judge’s rules regarding the permissible content of an opening statement.

3. Counsel should consider the strategic advantages and disadvantages of disclosing particular information during the opening statement or, in special circumstances, of deferring the opening statement until the beginning of the defense case. Counsel’s opening statement may also incorporate these objectives: a. To provide an overview of the defense case; b. To identify the weaknesses of the prosecution’s case; c. To educate the judge and jury about the juvenile brain and developmental science if appropriate; d. To identify and emphasize the prosecution’s burden of proof; e. To summarize the testimony of witnesses, and the role of each witness in relationship to the entire case; f.

To describe the exhibits that will be introduced and the role of each exhibit in relationship to the entire case;

g. To clarify the jurors’ responsibilities; h. To establish counsel’s credibility with the jury; 25

i.

To prepare the jury for the client’s testimony or failure to testify; and

j.

To state the ultimate inferences that counsel wishes the jury to draw.

4. Counsel should record, and consider incorporating in the defense summation, promises of proof the prosecution makes to the jury during its opening statement.

B. Defense Counsel’s Obligations During the Prosecution’s Opening Statement 1. Whenever the prosecution oversteps the bounds of a proper opening statement, counsel should consider objecting, requesting a mistrial, or seeking a cautionary instruction unless tactical considerations weigh against any such objections or requests. Such tactical considerations may include, but are not limited to: a. The significance of the prosecution’s error; b. The possibility that an objection might enhance the significance of the information in the jury’s mind; and c. Whether there are any rules made by the judge against objecting during the other attorney’s opening argument.

Guideline 7.4 Preparing to Confront and Confronting the Prosecution’s Case A. Counsel should research and be fully familiar with all of the elements of each charged offense and should attempt to anticipate weaknesses in the prosecution’s case.

B. Counsel should anticipate weaknesses in the prosecution’s proof and should research and consider preparing corresponding written motions for a directed verdict in advance of trial.

C. Counsel should consider the advantages and disadvantages of entering into stipulations concerning the prosecution’s case.

D. In preparing for cross-examination, counsel should:

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1.

Integrate the cross-examination, the theory of the defense, and closing argument;

2.

Consider whether cross-examination of each individual witness is likely to generate helpful information, and avoid asking unnecessary questions or questions that may hurt the defense case;

3.

File a motion requesting the names and addresses of witnesses the prosecution might call in its case-in-chief or in rebuttal;

4.

Formulate a cross-examination plan for each of the anticipated witnesses;

5.

Have prepared a transcript of all audio or video tape-recorded statements made by witnesses;

6.

Review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses;

7.

Be alert to inconsistencies or variations in a witness’s testimony;

8.

Be alert to possible variations between different witnesses’ testimony;

9.

When appropriate, obtain and review laboratory credentials and protocols and other similar documents for possible use in cross-examining expert witnesses;

10.

When appropriate, review relevant statutes and local police regulations for possible use in crossexamining police witnesses;

11.

Be alert to issues relating to witness credibility, including bias and motive for testifying; and

12.

Have prepared, for introduction into evidence, all documents that counsel intends to use during cross-examination, including certified copies of records such as prior convictions of witnesses and prior sworn testimony of witnesses.

E. Counsel should consider conducting a voir dire examination of potential prosecution witnesses who may not be competent to give particular testimony, including children or expert witnesses whom the prosecution may call. Counsel should be aware of the applicable law of the jurisdiction concerning competency of witnesses in general and admission of expert testimony in particular in order to be able to raise appropriate objections.

F. Prior to trial, counsel should ascertain whether the prosecution has provided copies of all prior statements of the witnesses it intends to call at trial. If disclosure is not timely made after the witness has testified, counsel should prepare and argue (a) motion(s) for: 1. Exclusion of the witness’s testimony and all evidence affected by that testimony; 2. A mistrial; 3. Dismissal of the case; 4. Adequate time to review the documents or investigate and prepare further before commencing cross-examination, including a continuance or recess when necessary; 5. A cautionary instruction; or 6. Any other sanction counsel believes would remedy the violation.

G. If appropriate, at the close of the prosecution’s case and out of the presence of the jury, counsel should move for an adjudication of not delinquent. Counsel should request, if necessary, that the court immediately rule on the motion, in order that counsel may make an informed decision about whether to present a defense case.

Guideline 7.5 Preparing and Presenting the Defense Case A. Counsel should develop, in advance of trial and in consultation with the client, an overall defense strategy. Counsel should reassess the strategy after the state has closed its case.

B. Counsel should discuss with the client in developmentally appropriate language all of the considerations relevant to the client’s decision to testify, including that the right to testify is the client’s constitutional right. Counsel should also be familiar with the ethical responsibilities that may be applicable if the client insists on testifying untruthfully. Counsel should advise the client in developmentally appropriate language of the advantages and disadvantages of testifying, as well as the rules regarding testifying under oath and the possible consequences for speaking untruthfully while under oath. Counsel should maintain a record of the advice provided to the client and the client’s decision concerning whether to testify. If the client does not follow counsel’s advice, counsel should 27

consider having the client acknowledge in writing the advice provided by counsel. The decision to testify rests solely with the client, and counsel should not attempt to unduly influence that decision. If the client does decide to testify, counsel must advise the client against making false statements and prepare the client for cross-examination by the state. Counsel must be aware of the laws regarding the admissibility of prior bad acts by juveniles.

C. Counsel should be aware of the elements and tactical considerations of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.

D. In preparing for presentation of a defense case, counsel should do the following: 1. Consider all potential evidence that could corroborate the defense case, and the import of any evidence that is missing, and organize all evidence and witnesses selected for trial; 2. After thorough investigation and consultation with the client, make the decision of which witnesses to call; 3. Develop a plan for direct examination of each potential defense witness; 4. Determine the implications that the order of witnesses may have on the defense case; 5. Consider the possible use and careful preparation of character witnesses, along with the risks of rebuttal and wide-ranging cross-examination; 6. Consider the use of physical or demonstrative evidence and the witnesses necessary to admit it; 7. Determine what facts necessary for the defense case can be elicited through the cross-examination of the prosecution’s witnesses; 8. Consider the need for expert witnesses and what evidence must be submitted to lay the foundation for the expert’s testimony; 9. Review all documentary evidence that may be presented by the state; 10. Review all tangible evidence that may be presented by the state; and 11. Be fully familiar with statutory and case law on objections, motions to strike, offers of proof, and preserving the record on appeal.

F. In developing and presenting the defense case, counsel should consider the elements/areas of the defense case that may be susceptible to a rebuttal by the prosecution.

G. Counsel should prepare all defense witnesses for direct and cross-examination. Counsel shall advise all witnesses about the sequestration of witnesses, the purpose of that rule, and the consequences of disregarding it. Counsel should also advise witnesses of suitable courtroom dress and demeanor.

H. Counsel should systematically analyze all potential defense evidence for evidentiary problems.

Counsel should research the law and prepare legal arguments in support of the admission of each piece of testimony or other evidence.

I.

Counsel should conduct redirect examination as needed.

J. If an objection by the state to defense evidence or testimony is sustained, counsel should make

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appropriate efforts to re-phrase the question(s) and make an offer of proof.

K. Counsel should make objections to improper cross-examination by the prosecution.

L. Counsel should keep a record of all exhibits identified and/or admitted.

M. At the close of the defense case, counsel should renew the motion for judgment of acquittal on each charged count.

Guideline 7.6 Closing Arguments A. Before argument, counsel should file and seek to obtain rulings on all requests for jury instructions in order to tailor or restrict the argument properly in compliance with the court’s rulings.

B. Counsel should be familiar with the substantive limits on both prosecution and defense summation.

C. Counsel should be familiar with the local rules and the individual judge’s practice concerning time limits and objections during closing argument, and provisions for rebuttal argument by the prosecution.

D. Counsel should develop closing prior to hearing but be prepared to adjust depending on development in the case or courtroom.

E. In developing closing argument, counsel should review the proceedings to determine what aspects can be used in support of defense summation and should consider: 1.

Highlighting weaknesses in the prosecution’s case;

2.

Describing favorable inferences to be drawn from the evidence;

3.

Incorporating into the argument: a. The theory and the theme(s) of the case; b. Helpful testimony from direct and cross-examination; c. Verbatim instructions drawn from the jury charge; d. Responses to anticipated prosecution arguments; e. Visual aids and exhibits; and

4.

The effects of the defense argument on the prosecution’s rebuttal argument.

F. Counsel should consider incorporating into the closing argument a summation of the promises of proof the prosecution made to the jury during its opening.

G. Whenever the prosecution exceeds the scope of permissible argument, counsel should object, request a mistrial, or seek a cautionary instruction, unless tactical considerations suggest otherwise. Such tactical considerations may include, but are not limited to: 1.

Whether the argument is harmful (e.g., a fact that is not in evidence that is nevertheless fairly innocuous);

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2.

The need to preserve the objection for appellate review; and

3.

The possibility that an objection might enhance the significance of the information in the jury’s mind.

Guideline 7.6 Jury Instructions A. Counsel should file proposed or requested jury instructions after the close of evidence and before closing argument.

B. Counsel should be familiar with the local rules and the individual judge’s practices concerning ruling on proposed instructions, charging the jury, use of standard charges, and preserving objections to the instructions.

C. Counsel should always submit proposed jury instructions in writing.

D. When appropriate, counsel should submit modifications to the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense. Counsel should provide case law or other authority in support of the proposed instructions.

E.

Counsel should object to and argue against improper instructions proposed by the prosecution.

F. If the court refuses to adopt instructions requested by counsel, or gives instructions over counsel’s objection, counsel should take all steps necessary to preserve the record, including filing a copy of proposed instructions or reading proposed instructions into the record.

G. During delivery of the charge, counsel should be alert to any deviations from the judge’s planned instructions, object to deviations unfavorable to the client, and, when necessary, request additional or curative instructions.

H. If the court proposes giving supplemental instructions to the jury, either upon request of the jurors or upon their failure to reach a verdict, counsel should request that the judge state the proposed charge to counsel before it is delivered to the jury. Counsel should renew or make new objections to any additional instructions given to the jurors after the jurors have begun their deliberations.

I.

Counsel should reserve the right to make exceptions to the jury instructions above and beyond any specific objections that were made during the trial.

J. Counsel should move to discuss any jury notes or responses to jury notes regarding substantive matters in open court and on the record, and to include the actual notes and responses in the record for appellate purposes.

Guideline 8.1 Preparation for Disposition Counsel should have prepared for disposition alongside his preparations for adjudication.

A. Counsel should be familiar with the disposition provisions of the Texas Family Code and the specific options available in the particular case, including: 1. Whether there is a possibility of a determinate disposition.

2. The potential for impact on future adjudications and dispositions within the juvenile justice system and disposition enhancements, as well as all other applicable disposition statutes or case law;

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3. If a disposition involving juvenile probation is possible, the permissible conditions of probation with which the client must comply in order to avoid probation modification; 4. The availability of appropriate diversion and rehabilitation programs; and 5. Applicable court costs.

B. In preparation for disposition, counsel should be aware of, and have visited, example potential out-ofhome placement options, including group homes, foster care, residential programs, and treatment facilities.

C. Counsel should have obtained from the client and other sources any information or documentation, including affidavits, to support the client’s disposition plan, as well as preparing witnesses to testify at the disposition hearing when appropriate.

D. Counsel should prepare the client for any interview conducted by the official preparing the predisposition report.

E. Counsel should discuss with the client, in developmentally appropriate terms, the array of options for disposition and identify the client’s preferences for disposition.

F. Counsel should consider the need for and availability of disposition specialists prior to disposition, and seek the assistance of such specialists whenever possible and appropriate.

G. Counsel should actively advise probation on their preparation of a disposition plan. If counsel finds that probation is not responsive, counsel should consider preparing a disposition plan separate from probation’s plan.

H. Counsel must comply with any order from the court pursuant to the Texas Family Code prohibiting counsel from revealing particular items in the disposition materials to the juvenile or his parent, guardian, or guardian ad litem.

I.

Counsel should be familiar with the procedures for disposition hearings, including the rules of evidence and burden of proof at such hearings, and the effect that plea negotiations may have upon the discretion of the court.

J. Counsel should inform the client of the client’s right to speak at the disposition proceeding and assist the client in preparing the statement, if any, to be made to the court, making clear the possible consequences that any admission may have upon an appeal, subsequent retrial, or trial on other offenses.

K. Counsel should inform the client of the effects that admissions and other statements may have upon an appeal, retrial, or other judicial proceedings, such as forfeiture or restitution proceedings.

L. Counsel should maintain regular contact with the juvenile if the adjudication hearing and disposition hearing are set for different days.

M. Prior to disposition, counsel should confer with the client’s parents, when appropriate, to explain the disposition process and to determine the parents’ willingness to support the client’s proposed disposition. Counsel must ensure parents know their role in the process.

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Guideline 8.2 The Social History or Predisposition Report Counsel should be familiar with the procedures concerning the preparation, submission, and verification of the social history report or similar document. In addition, counsel should: A. Determine whether a social history report will be prepared and submitted to the court prior to disposition; if preparation of the report is optional, counsel should consider the strategic implications of requesting that a report be prepared; B. Discuss the importance of the social history report with the client and prepare the client to participate; C. Provide to the official preparing the report relevant information favorable to the client, including, when appropriate, the client’s version of the offense, and supporting evidence; D. Attend any interview of the client by an investigator; E. Review the completed report and advise probation on any suggested changes prior to the disposition hearing; F. Take appropriate steps to preserve and protect the client’s interests, including requesting that a new report be prepared with the challenged or unproved information deleted before the report is distributed to correctional and probation officials, when the defense challenges information in the social history report as being erroneous or misleading and: 1. The court refuses to hold a hearing on a disputed allegation adverse to the client; 2. The prosecution fails to prove an allegation; or 3. The court finds an allegation not proved.

G. Counsel should ensure that there is no error in the report that could result in a misclassification of a sanction level after disposition.

H. Counsel should request to see copies of the report to be distributed in order to verify that challenged information actually has been removed from the report.

I.

If counsel attempts to work with probation to develop the social history report and finds that probation is unresponsive, and counsel feels that a separate disposition report is necessary, counsel should develop a defense disposition memorandum to distribute. Counsel should request his own expert to develop a defense predisposition report when appropriate. Among the items counsel should consider including in the memorandum are: 1. Presentation of an individualized disposition proposal that takes into account the client’s expressed interest; 2. Information favorable to the client concerning such matters as the offense, mitigating factors and relative culpability, prior offenses, personal background, any mental health concerns, extracurricular activities, social strengths, employment record and opportunities, educational background, and family and financial status; 3. Information concerning the availability and appropriateness of community-based treatment programs, community treatment facilities, and community service work opportunities; 4. Information that would support a disposition other than out-of-home placement, such as the

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potential for rehabilitation, the nonviolent nature of the offense, and the availability of the clients’ parents to support the client through completing any terms of probation; 5. Challenges to incorrect or incomplete information in the official predisposition report or any prosecution disposition memorandum; 6. Challenges to improperly drawn inferences and inappropriate characterizations in the official predisposition report or any prosecution disposition memorandum; and 7. Information contrary to that before the court and that is supported by affidavits, letters, and public records.

Guideline 8.3 The Disposition Hearing A. Counsel should be prepared at the disposition hearing to take the steps necessary to advocate fully for the requested disposition and to protect the client’s interest.

B. Counsel should be familiar with the procedures available for obtaining an evidentiary hearing before the court in connection with the imposition of disposition.

C. Counsel must ensure that the facts the court considers in reaching its disposition decision are made part of the record, as well as counsel’s objections to the disposition plan and any disputed findings of fact that serve as a basis for the court’s decision.

D. Counsel must identify and preserve legal and constitutional issues for appeal.

E. When the state disputes or challenges information favorable to the client, counsel should be prepared to present supporting evidence, including testimony of witnesses, to establish the facts favorable to the client.

F. Counsel should request specific orders or recommendations from the court concerning the place of confinement, psychiatric treatment or drug rehabilitation, and against deportation/exclusion of the client.

Guideline 8.4 Obligations to Client Awaiting Placement Counsel has continuing obligations to a client who is awaiting placement pursuant to a disposition order.

Counsel should pursue efforts to keep the client in the least restrictive environment prior to placement if necessary, appropriate, and within the client’s expressed interest.

Guideline 8.5 Sealing, Restriction, and/or Expunction of Record After final disposition of the case, counsel should inform the client whether the client’s records in the case will be automatically sealed or restricted. If the client’s record will not be automatically sealed or restricted, counsel should inform the client of any procedures available for requesting that the client’s records be sealed, restricted, and/or expunged and, if such procedures may be available in the client’s case, when and under what conditions the client may pursue a sealing, restriction, or expunction. If appropriate, counsel should inform the client’s family as well.

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Guideline 9.1 Duties of Defense Counsel after Disposition A. A client’s right to counsel, and counsel’s responsibilities to the client, do not terminate upon a finding of delinquency, or imposition of disposition.

B. Regardless of whether appointed or retained, and irrespective of the terms of any contract or legal services agreement, counsel must continue representation of the client until counsel has been formally granted permission to withdraw as counsel of record. Counsel shall continue to represent the client until the case has completed, including in motion for new trial proceedings when appropriate, or until new counsel has been appointed or retained.

C. If the client wishes to pursue post-adjudication remedies, counsel should do the following prior to seeking to withdraw as counsel for post-adjudication proceedings: 1. Notify the juvenile court in advance if the client will request appointed counsel and may require the immediate assistance of post-adjudication counsel; and 2. If arrangements have not been made for new counsel by the date of the verdict, assist the juvenile in filing a written notice of appeal and in requesting prompt appointment of postadjudication counsel.

D. Counsel should not represent any client on appeal that counsel represented in the adjudication proceedings, unless new appellate counsel is not available.

Guideline 9.2 Education, Training, and Experience of Defense Counsel in Post-Adjudication Proceedings To provide competent, quality representation in post-adjudication proceedings, counsel must possess the education, training, and experience specified in Guideline 1.2 and in addition be familiar with the Rules of Appellate Procedure and any local rules of the courts of appeal.

Guideline 9.3 Motion for a New Trial A. Counsel should recognize that juvenile appeals, including motions for a new trial, are governed predominately by the rules that govern civil appeals. Counsel must be familiar with the timelines and rules that govern civil appeals.

B. Counsel should be familiar with the procedures applicable to a motion requesting a new trial, including:

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1.

The time period for filing such a motion;

2.

The effect it has upon the time to file a notice of appeal;

3.

The grounds that can be raised, which are differ somewhat from the grounds that can be raised on appeal in the criminal context;

4.

The evidentiary rules applicable to hearings on motions for new trial, including the requirement that factual allegations in the motion, or affidavits in support of such factual allegations, must be sworn to;

5.

The requirement that a motion for new trial be timely “presented” to the trial court in conformance with Rule of Appellate Procedure 21.6 in order to obtain a specific hearing date and preserve for appeal a claim that a request for a hearing was erroneously denied;

6.

The time period for receiving a ruling on a motion for new trial, after which the motion is overruled by operation of law; and

7.

The requirement that a trial court make written findings if a motion for new trial is granted.

C. If a finding of delinquency has been entered against the client after adjudication, counsel should consider whether it is appropriate to file a motion for a new trial with the trial court. In deciding whether to file such a motion, the factors counsel should consider include: 1. The likelihood of success of the motion, given the nature of the error or errors that can be raised; 2. The effect that such a motion might have upon the client’s appellate rights, including whether the filing of such a motion is necessary to, or will assist in, preserving the client’s right to raise on appeal the issues that might be raised in the new trial motion because of the opportunity to establish facts not in the trial record; 3. The effect filing a motion for new trial will have on the time period for perfecting an appeal; 4. Whether, after explaining to the client in developmentally appropriate language the client’s right to submit a motion for new trial, the client desires that such a motion be filed; and 5. The effect filing a motion for new trial may have on the availability of other post-trial remedies.

D. The decision to file a motion for new trial should be made after considering the applicable law in light of the circumstances of each case. Among the issues that counsel should consider addressing in a motion for new trial are: 1. Denial of pre-trial motions; 2. Denial of the client’s right to counsel or right to be present during trial; 3. Improper admission or exclusion of evidence; 4. A fundamentally defective jury charge; 5. Jury misconduct; 6. Intentional suppression by the State of witness testimony or other evidence tending to show the client’s innocence, preventing its production at trial; 7. Denial of a continuance based upon a critical missing witness or delayed discovery; 8. Sufficiency of the evidence; and 9. Any claim that would require a new trial in the interest of justice.

E. In the event that a motion for new trial is granted, counsel should be prepared to draft and timely file a reply brief in opposition to any appeal of that decision filed by the prosecution.

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Guideline 9.4 Protecting Client’s Right to Appeal A. At the conclusion of each phase of the case, counsel must advise the client of the client’s right to appeal the adjudication, disposition, and modifications of disposition decisions.

B. If the client expresses desire to appeal, counsel shall file a notice of appeal and inform the juvenile court whether counsel intends to represent the client on appeal.

Guideline 9.5 Duty to Facilitate Work of Successor Counsel A. In accordance with professional norms, all persons who are or have been members of the defense team have a continuing duty to safeguard the interests of the client and should cooperate fully with successor counsel. This duty includes, but is not limited to: 1. Maintaining the records of the case in a manner that will inform the successor counsel of all significant developments relevant to the litigation; 2. With the client’s permission, or if ordered by the court, providing the client’s files, as well as information regarding all aspects of the representation to successor counsel; 3. Sharing potential further areas of legal and factual research with successor counsel; and 4. Cooperating with such professionally appropriate legal strategies as may be chosen by successor counsel.

B. After transferring the client’s files to successor counsel, counsel should send a letter to the client advising the client of the file transfer.

Guideline 9.6 Direct Appeal A. Counsel representing a client on direct appeal should be familiar with the procedures applicable to an appeal, including the rules specifying the time period for filing an appeal and the requirements for submission of the clerk’s and reporter’s records.

B. Counsel should, upon being contacted by the court or client concerning representation for an appeal, immediately consult with the trial court to ascertain relevant information concerning the perfection of the appeal and relevant filing deadlines, in order to confirm that counsel’s acceptance of the case permits the maximum opportunity for proper representation.

C. When a client indicates a desire to appeal the judgment or disposition of the court, counsel has a duty to submit a notice of appeal on behalf of the client even if counsel does not want to represent the client on appeal.

D. New counsel should immediately contact trial counsel to obtain background information on the client and information on the nature of the issues presented, as well as to determine whether filing a motion for new trial, if available, is necessary to, or will assist in, preserving the client’s right to raise on appeal the issues that might be raised in the new trial motion.

E. Retained counsel should, upon acceptance of appellate representation, immediately inform the court and the prosecution of the representation by filing the appropriate designation of counsel with the court, and all counsel, both retained and appointed, must submit the proper designations of the clerk’s and reporter’s records as mandated by the Texas Rules of Appellate Procedure.

F. Counsel should meet with the client as soon as possible after retention/appointment and well before

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filing the appellate brief.

G. Counsel must review the clerk’s and reporter’s records to determine whether they are true, correct, and complete in all respects. If errors or omissions are found, objections to the record must be immediately filed with the trial or appellate courts in order to obtain corrections or hearings necessary to protect the reliability of the record.

H. Counsel should fully review the appellate record for all reviewable errors, prepare a well-researched and drafted appellate brief, file the brief in a timely manner and in accordance with all other requirements in the Texas Rules of Appellate Procedure and any local rules, and notify the court of counsel’s desire to present oral argument in the case, when appropriate.

I.

Counsel should consider preparing and filing a reply brief or a motion for rehearing if, under the circumstances, such is needed or required, particularly in order to make the court of appeals aware of legal or factual matters that may have been overlooked or mischaracterized or that may have newly developed.

Guideline 9.7 Right to File a Petition for Review In the event that the intermediate appellate court’s decision is unfavorable to the client, counsel must advise the client in person or by phone and in writing by hand delivery or certified mail of the court’s decision and the client’s right to file a petition for review and the action that must be taken to properly file such a petition.

In advising the client of the right to file a petition for review, counsel should explain that: A. Review by the Supreme Court of Texas is discretionary and not a matter of right, and that the Supreme Court of Texas may refuse to review the client’s case without providing any reason for doing so; B. If the client is indigent, the client does not have the right to appointed counsel for the purpose of filing a petition for review but that, upon request, counsel may be appointed for this purpose; and C. If the client is indigent and if the petition for review is granted, the client does not have the right to court-appointed counsel for further proceedings on the merits before the Supreme Court of Texas, but that upon request, counsel may be appointed.

Guideline 9.8 Petition for Review A. If an intermediate appellate court has issued a decision unfavorable to the client, counsel should advise the client of his right to file a petition for review with the Supreme Court of Texas and discuss with the client whether it may be appropriate to file such a petition in the client’s case.

B. Counsel representing a client on a petition for review should be familiar with the procedures applicable to such a petition, including the rules specifying the time period for filing a petition; the organization of a petition; the page limits for a petition and the procedure for requesting an expansion of the petition for good cause; and appendices and copies required for filing a petition.

C. The decision to file a petition for review should be made after considering the applicable law in light of the circumstances of each case and the reasons for granting review specified in the Texas Rules of Appellate Procedure. Reasons for review that counsel should consider presenting in a petition for review include: 1.

Whether a court of appeals’ decision conflicts with another court of appeals’ decision on the same issue;

2.

Whether a court of appeals has decided an important question of state or federal law that has not 37

been, but should be, settled by the Supreme Court of Texas; 3.

Whether a court of appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Supreme Court of Texas or the United States Supreme Court;

4.

Whether a court of appeals has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance;

5.

Whether the justices of a court of appeals have disagreed on a material question of law necessary to the court’s decision; and

6.

Whether a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Supreme Court of Texas’s power of supervision.

D. In preparing a petition for review, counsel should fully review the appellate opinion for all reviewable errors, prepare a well-researched and drafted petition, file the petition in a timely manner and in accordance with all other requirements in the Rules of Appellate Procedure, and notify the court of counsel’s desire to present oral argument in the case, when appropriate.

E. Should the Supreme Court of Texas request a brief on the merits, counsel should notify the client and prepare and timely file a brief on the merits in support of the grant of review.

F. Counsel should be prepared to draft and timely file a reply brief in opposition to any brief filed by the prosecution.

G. Counsel should be prepared to draft and timely file a motion for rehearing should the Supreme Court of Texas deny relief after granting a petition for review and reviewing the case on the merits. Counsel should be prepared to timely defend against the prosecution’s motion for rehearing should the court reverse the adjudication findings.

H. If the Supreme Court of Texas summarily denies a petition for review, counsel should be prepared to draft and timely file a motion for rehearing if, in conformance with Rule of Appellate Procedure 79.2, there are substantial intervening circumstances justifying further review.

Guideline 9.9 Right to File a Petition for Certiorari to the United States Supreme Court A. In the event that the Supreme Court of Texas either summarily denies a petition for review or denies relief after reviewing the client’s case on the merits, counsel should advise the client in writing by certified mail of the client’s right to file a petition for certiorari before the United States Supreme Court and the action that must be taken to properly file such a petition, including the strict deadline. In informing the client of the right to file a petition for certiorari, counsel should explain that: 1. Review by the United States Supreme Court is discretionary and not a matter of right, and that the United States Supreme Court may refuse to review the client’s case without providing any reason for doing so; 2. If the client is indigent, the client does not have the right to court-appointed counsel for the purpose of filing a petition for certiorari; 3. The date by which a petition must be filed; and 4. If the client is indigent and if the petition for certiorari is granted, the client may request the

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appointment of counsel for further proceedings on the merits before the United States Supreme Court.

B. Considerations relevant to filing a petition for certiorari may include but are not limited to: 1. The Supreme Court of Texas has decided an important question of federal law in a way that conflicts with the decision of another state court of last resort or federal court of appeals; or 2. The Supreme Court of Texas has decided an important question of federal law in a way that has not been, but should be settled by the United States Supreme Court, or has decided an important question of federal law in a way that conflicts with a decision of the United States Supreme Court.

Guideline 9.10 Role at Probation Modification Hearings Counsel should receive notice and represent the client at probation modification or violation hearings.

A. Counsel should be proficient in applicable statutes regarding probation hearings, including the jurisdiction’s standard of proof for a violation and the procedural requirements for revocation.

B. Counsel should investigate the client’s alleged failure to abide by conditions of the probation order, including whether the probation officer and designated social service providers have met their obligations to the client, and advocate accordingly: 1. When counsel’s investigation reveals that the client’s probation officer, service providers, or family have not complied with the court’s plan, counsel should either request that the court enforce its existing order or propose appropriate changes to the plan; and 2. When the basis of a client’s probation violation is a new charge, counsel may consider asking the court to delay the hearing pending the outcome of the new case.

C. Counsel must offer mitigation evidence to explain the client’s failure to abide by the probation contract.

D. Counsel must provide zealous representation at probation violation hearings, with the same duty of care, level of preparation, investigation, and adherence to the principles governing representation, as counsel would provide for any other proceeding.

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STATE BAR OF TEXAS

PERFORMANCE GUIDELINES For NON-CAPITAL CRIMINAL DEFENSE REPRESENTATION

Adopted by the State Bar Board of Directors January 28, 2011

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PERFORMANCE GUIDELINES For NON-CAPITAL CRIMINAL DEFENSE REPRESENTATION

TABLE OF CONTENTS

Guideline........................................................................................................Page GUIDELINE 1.1 ─ ROLE OF DEFENSE COUNSEL.…………….........................1 GUIDELINE 1.2 ─ EDUCATION, TRAINING AND EXPERIENCE OF DEFENSE COUNSEL……………….......................................................................................2 GUIDELINE 1.3 ─ GENERAL DUTIES OF DEFENSE COUNSEL…………….... 2 GUIDELINE 2.1 ─ GENERAL OBLIGATIONS OF COUNSEL REGARDING PRETRIAL RELEASE…………………………………………………..................... 3 GUIDELINE 2.2 ─ INITIAL INTERVIEW.............................................................. 3 GUIDELINE 3.1 ─ INITIAL APPEARANCE BEFORE THE MAGISTRATE AND PRETRIAL RELEASE PROCEEDINGS……....................................................... 6 GUIDELINE 3.2 ─EXAMINING TRIAL................................................................. 7 GUIDELINE 3.3 ─ COMPETENCY TO STAND TRIAL ....................................... 8 GUIDELINE 3.4 ─ PROSECUTION REQUESTS FOR NON-TESTIMONIAL EVIDENCE..………………………………………………………………………….....9 GUIDELINE 4.1 ─ INVESTIGATION…………………………………………...........9 GUIDELINE 4.2 ─FORMAL AND INFORMAL DISCOVERY…...........................11 GUIDELINE 4.3 ─ THEORY OF THE CASE.......................................................13 GUIDELINE 5.1 ─ ARRAIGNMENT………………………....................................13 ii

TABLE OF CONTENTS GUIDELINE 5.2 – THE DECISION TO FILE PRETRIAL MOTIONS..................13 GUIDELINE 5.3 ─ FILING AND ARGUING PRETRIAL MOTIONS................... 15 GUIDELINE 5.4 ─ SUBSEQUENT FILING OF PRETRIAL MOTIONS….......... 15 GUIDELINE 6.1 ─ THE PLEA NEGOTIATION PROCESS AND THE DUTIES OF COUNSEL....................................................................................................16 GUIDELINE 6.2 – THE CONTENTS OF THE NEGOTIATIONS........................16 GUIDELINE 6.3 –THE DECISION TO ENTER A PLEA OF GUILTY ............... 19 GUIDELINE 6.4 ─ ENTRY OF THE PLEA BEFORE THE COURT .................. 20 GUIDELINE 7.1 ─ GENERAL TRIAL PREPARATION.…………....................... 21 GUIDELINE 7.2 ─ VOIR DIRE AND JURY SELECTION...................................23 GUIDELINE 7.3 – OPENING STATEMENT………………………………........... 25 GUIDELINE 7.4 – CONFRONTING THE PROSECUTION’S CASE..................26 GUIDELINE 7.5─ PRESENTING THE DEFENSE CASE………........................28 GUIDELINE 7.6 ─ CLOSING ARGUMENT…………………………....................29 GUIDELINE 7.7 ─ JURY INSTRUCTIONS ……………………………................30 GUIDELINE 8.1 – OBLIGATIONS OF COUNSEL IN SENTENCING .…………31 GUIDELINE 8.2 – SENTENCING OPTIONS, CONSEQUENCES AND PROCEDURES………………………………………………………………………32 GUIDELINE 8.3 – PREPARATION FOR SENTENCING..………………………33 GUIDELINE 8.4 – THE OFFICIAL PRESENTENCE REPORT….……………..34 GUIDELINE 8.5 – THE PROSECUTION’S SENTENCING POSITION………..35 GUIDELINE 8.6 – THE DEFENSE SENTENCING MEMORANDUM………….35 GUIDELINE 8.7 – THE SENTENCING PROCESS………………………………35 GUIDELINE 8.8 – SELF-SURRENDER…………………………………………...36

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TABLE OF CONTENTS GUIDELINE 8.9 – EXPUNGEMENT OF RECORD………………………………36 GUIDELINE 9.1 – DUTIES OF DEFENSE COUNSEL IN POST-TRIAL PROCEEDINGS………………………………………………………………………36 GUIDELINE 9.2 – EDUCATION, TRAINING AND EXPERIENCE OF DEFENSE COUNSEL IN POST-TRIAL PROCEEDINGS…………………………………….37 GUIDELINE 9.3 – MOTION FOR A NEW TRIAL…………………………………37 GUIDELINE 9.4 – PROTECTING THE RIGHT TO APPEAL……………………38 GUIDELINE 9.5 – DIRECT APPEAL..……………………………………………..39 GUIDELINE 9.6 – RIGHT TO FILE A PETITION FOR DISCRETIONARY REVIEW……………………………………………………………………………….39 GUIDELINE 9.7 – PETION FOR DISCRETIONARY REVIEW………………….40 GUIDELINE 9.8 – RIGHT TO FILE A PETION FOR CERTIORARI TO THE UNITED STATES SUPREME COURT…………………………………………….41

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State Bar of Texas Legal Services to the Poor in Criminal Matters Committee

Performance Guidelines for Non-Capital Criminal Defense Representation Purpose and Scope of the Performance Guidelines The Guidelines are intended to serve several purposes. The foremost purposes are to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of indigent defendants.

The Guidelines are intended to alert defense counsel to courses of action that may be necessary, advisable, or appropriate, and thereby to assist counsel in deciding upon the particular actions that must be taken in each case to provide the client the best representation possible. The Guidelines also are intended to provide a measure by which the performance of individual attorneys may be evaluated, and to assist in training and supervising attorneys.

The language of the Guidelines is general, implying flexibility of action appropriate to the particular situation at issue. Use of judgment in deciding upon a particular course of action is reflected by the phrases “should consider” and “when appropriate.” When a particular course of action is appropriate in most circumstances, the Guidelines use the word “should.” When a particular action is absolutely essential to providing quality representation, the Guidelines use the words “shall” or “must.” Even when the Guidelines use the words “should” or “shall,” or “must,” in certain situations the lawyer’s best informed professional judgment and discretion may indicate otherwise. Variations from the Guidelines also may be appropriate to accommodate local court procedures; however, counsel should protect a client’s rights and, when necessary, preserve error when local practices conflict with the client’s rights under state and federal law or counsel’s ethical obligations to the client.

The Guidelines are not criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. The Guidelines may or may not be relevant to such a judicial determination, depending upon all of the circumstances of the individual case.

The Guidelines specifically apply to practice in Texas state court from the time of initial representation in trial-level proceedings to the exhaustion of direct review before the Court of Criminal Appeals. In any particular case, the Guidelines begin to apply at the time an attorney-client relationship is formed. The Guidelines require counsel to advise clients of their right to seek federal review in appropriate circumstances but do not extend to representation of defendants in federal court.

Guideline 1.1 Role of Defense Counsel A. The primary and most fundamental obligation of defense counsel is to provide zealous and effective representation for the client at all stages of the criminal process. Counsel’s role in the criminal justice system is to fully protect and advance the client’s interests and rights. If personal matters make it impossible for counsel to fulfill the duty of zealous representation, counsel has a duty to refrain from representing the client. Counsel’s personal opinion of the client’s guilt is totally irrelevant. The client’s financial status is of no significance. Indigent clients are entitled to the same zealous representation as clients capable of paying an attorney.

B. Counsel also has an obligation to uphold the ethical standards of the State Bar of Texas and to act in accordance with the rules of the court.

Guideline 1.2 Education, Training and Experience of Defense Counsel A. To provide competent, quality representation, counsel must be familiar with the substantive criminal law and the law of criminal procedure and its application in the particular jurisdiction, including changes and developments in the law. Counsel must maintain research capabilities necessary for presentation of relevant issues to the court. Counsel should participate in skills training and education programs in order to maintain and enhance skills.

B. Prior to undertaking the defense of one accused of a crime, counsel should have sufficient experience to provide competent representation for the case. Counsel should accept more serious and complex criminal cases only after having had experience or training in less complex criminal matters. When appropriate, counsel should consult with more experienced attorneys to acquire knowledge and familiarity with all facets of criminal representation, including information about practices of judges, prosecutors, probation officers, and other court personnel.

C. If representing a client with mental illness or a developmental disability, counsel should become familiar with the symptoms of the client’s mental impairment and those symptoms’ potential impact on the client’s culpability in the case and potential use as a mitigating factor during sentencing. Counsel also should be familiar with the side effects of any medication the client may be taking to treat the client’s mental impairment and the impact those side effects may have on the client’s culpability in the case or use as a mitigating factor during sentencing.

D. Attorneys who represent individuals who are charged with capital offenses in which the prosecution is seeking death must adhere to the Guidelines and Standards for Texas Capital Counsel adopted by the State Bar Board of Directors in 2006.

Guideline 1.3 General Duties of Defense Counsel A. Before agreeing to act as counsel or accepting appointment by a court, counsel has an obligation to confirm that counsel has available sufficient time, resources, knowledge and experience to offer quality representation to a defendant in a particular matter. If it later appears that counsel is unable to offer quality representation in the case, counsel should move to withdraw.

B. Counsel has the obligation to maintain regular contact with the client and keep the client informed of the progress of the case, when it is possible to do so. Counsel should promptly comply with a client’s reasonable requests for information, and reply to client correspondence and telephone calls.

C. Counsel should adequately inform the client of the client’s legal obligations related to the case, such as conditions of release or sentencing terms, and have the client verbally restate the obligations in order to ascertain the client’s understanding of those obligations.

D. If appointed to represent an indigent client, counsel shall make every reasonable effort to contact the client not later than the end of the first working day after the date on which counsel is appointed, in compliance with Code of Criminal Procedure 26.04(j). In making this contact,

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counsel should provide the client with an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with counsel.

E. Counsel should appear timely for all scheduled court appearances in a client’s case.

F. Counsel should spend appropriate time on each case regardless of whether counsel is appointed or retained. Counsel shall not suggest to an appointed client that counsel would provide preferential treatment if counsel were retained or otherwise compensated beyond the fee paid by the court for their work on a case.

G. Counsel must be alert to all potential and actual conflicts of interest.

H. If a conflict develops during the course of representation, counsel has a duty to notify the client and, generally, the court. Notice must be provided to the court without disclosing any confidential information.

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If counsel's caseload is so large that counsel is unable to satisfactorily meet these performance guidelines, counsel shall inform the court or courts before whom counsel's cases are pending.

J. If appointed to represent an indigent client, pursuant to Code of Criminal Procedure 26.04(j), counsel shall continue to represent the client until charges are dismissed, the client is acquitted, appeals are exhausted, or counsel is relieved of counsel’s duties by the court or replaced by other counsel after a finding of good cause is entered on the record.

K. If counsel withdraws from representation, counsel has an obligation to deliver all contents of the client’s file, including notes by counsel, to new counsel if requested. Counsel shall timely respond to any reasonable request by new counsel regarding the case.

Guideline 2.1 General Obligations of Counsel Regarding Pretrial Release When appropriate, counsel has an obligation to attempt to secure the prompt pretrial release of the client under the conditions most favorable to the client.

Guideline 2.2 Initial Interview A. Counsel shall arrange for an initial interview with the client as soon as practicable after being assigned to the client’s case. Absent exceptional circumstances, if the client is in custody, the initial interview should take place within three business days after counsel receives notice of assignment to the client’s case. When necessary, counsel may arrange for a designee to conduct the initial interview. If the initial interview is completed by a designee, counsel shall interview the client personally at the earliest reasonable opportunity.

B. Preparation: After being assigned to a case and prior to conducting the initial interview, counsel should, when possible, do the following: 1. Be familiar with the elements of the offense and the potential punishment range, if the charges against the client are already known;

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2. Obtain copies of any relevant documents that are available, including copies of any charging documents, recommendations and reports made by pretrial services agencies concerning pretrial release, and law enforcement reports; and 3. If representing client with mental illness, obtain reports from jail staff on the client’s mental health status at the time of booking into the jail and the client’s current mental health status.

In addition, if the Client is incarcerated, counsel should: 4. Be familiar with the legal criteria for determining pretrial release and the procedures that will be followed in setting pretrial release conditions; 5. Be familiar with the different types of pretrial release conditions the court may set, any written pretrial release policies of the judicial district, and whether any pretrial service or other agency is available to act as a custodian for the client’s release; 6. Be familiar with any procedures available for reviewing the trial judge's setting of bail; and 7. Be familiar with Code of Criminal Procedure 17.032, which sets forth the procedure by which certain mentally ill defendants may be released on personal bond.

C. The Interview: 1. The purpose of the initial interview is both to acquire information from the client concerning pretrial release if the client is incarcerated, and also to provide the client with information concerning the case. At this and all successive interviews and proceedings, counsel should make every effort to overcome barriers to communication, such as differences in language or literacy, disability, or different cultural backgrounds. When appropriate, counsel should file a motion to have a foreign language or sign language interpreter appointed by the court and present at the initial interview.

2. In addition, counsel should obtain from the client all release forms necessary to obtain the client’s medical, psychological, education, military, prison, and other records as may be pertinent.

3. In some jurisdictions, videoconferencing or teleconferencing is available for meeting with the client from a remote location, rather than traveling to the jail. Videoconferencing or teleconferencing is not preferred for the initial interview. Videoconferencing or teleconferencing is never recommended for contact with mentally ill clients or clients who have a developmental disability.

4. While obtaining the information specified in item 5 below during the initial interview is important to preparation of the defense of the client’s case, if working with a mentally ill or developmentally disabled client, counsel should be aware of symptoms of the client’s mental impairment that may make it difficult to obtain some of the information. Counsel may need to make a few visits to the client to obtain the specified information or obtain

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the information from multiple sources, depending on the client’s state of mind and ability to provide counsel with information.

5. Information that should be acquired includes, but is not limited to: a. The client's ties to the community, including the length of time the client has lived at the current and former addresses, family relationships, employment record and history, and immigration status (if applicable); b. The client's physical and mental health, educational, employment, social security/disability, and armed services records; c. The client's immediate medical needs; d. The client's past criminal record, if any, including arrests and convictions for adult and juvenile offenses and prior record of court appearances or failure to appear in court; counsel should also determine whether the client has any pending charges and also whether the client is on probation or parole and the client's past or present performance under supervision; e. The ability of the client to meet any conditions of release, including financial conditions; f.

The names of individuals or other sources that counsel can contact to verify the information provided by the client; counsel should obtain the permission of the client before contacting these individuals;

g. Any necessary information waivers or releases that will assist in the client’s defense, including preparation for sentencing; the written releases obtained should include a HIPAA (Health Insurance Portability and Accountability Act) compliant release in case medical records are required; and h. Any other information that will assist the client’s defense, including mitigation information for use in preparation for sentencing.

6. Information to be provided to the client includes, but is not limited to: a. An explanation of the procedures that will be followed in setting the conditions of pretrial release; b. An explanation of the types of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense; c. An explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with counsel; d. The charges and the potential penalties;

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e. A general procedural overview of the progression of the case, when possible; f.

Realistic answers, when possible, to the client’s most urgent questions;

g. What arrangements will be made or attempted for the satisfaction of the client’s most pressing needs, e.g., medical or mental health attention, contact with family or employers; h. How and when counsel can be reached; and i.

When counsel intends to see the client next.

D. Supplemental Information Whenever possible, counsel should use the initial interview to gather additional information relevant to preparation of the defense. Such information may include, but is not limited to: 1. The facts surrounding the charges against the client; 2. Any evidence of improper police investigative practices or prosecutorial conduct that affects the client's rights; 3. Any possible witnesses who should be located; 4. Any evidence that should be preserved; and 5. When appropriate, evidence of the client's competence to stand trial or mental state at the time of the offense.

Guideline 3.1 Initial Appearance before the Magistrate and Pretrial Release Proceedings A. At the initial appearance on the charges before the magistrate, counsel should preserve the client's rights by seeking a determination of whether there is probable cause to support the charges alleged and, if there is not probable cause, or other grounds exist for dismissal, requesting that the court dismiss the charge or charges.

B. Counsel should request a timely examining trial if the client is entitled to one unless there is a sound tactical reason not to do so.

C. When appearing at a bond hearing, counsel should be prepared to present to the appropriate judicial officer a statement of the factual circumstances and the legal criteria supporting release and, when appropriate, to make a proposal concerning conditions of release.

D. Counsel should adequately inform the client of the client’s conditions of release after such conditions have been set.

E. If the client is unable to fulfill the conditions of release set by the court, counsel should consider pursuing modification of the conditions of release under the procedures available.

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F. If the court sets conditions of release that require the posting of a monetary bond or the posting of real property as collateral for release, counsel should inform the client of the available options and the procedures that must be followed in posting such assets. When appropriate, counsel should advise the client and others acting on the client’s behalf how to properly post such assets.

G. The decision as to whether or not the client should testify at any bond hearing shall be made after consultation between counsel and the client. In the event that the client and counsel decide that it would be in the best interest of the client to testify regarding bond, counsel should instruct the client not to answer any questions that do not pertain strictly to the issue of bond.

H. If the client is incarcerated and unable to obtain pretrial release, counsel should alert the court to any special medical, psychiatric, or security needs of the client and request that the court direct the appropriate officials to take steps to meet such special needs. Counsel should follow up with the client regarding whether medications or treatments are being given in jail, and notify the court or relevant jail management personnel if any problems arise.

Guideline 3.2 Examining Trial A. Before conducting an examining trial, counsel should make reasonable efforts to secure and review information in the prosecution’s or law enforcement authorities’ possession. When necessary, counsel should pursue such efforts through formal and informal discovery unless there is a sound tactical reason for not doing so.

B. If the client is entitled to an examining trial, counsel should take steps to see that the examining trial is conducted timely unless there are strategic reasons for not doing so.

C. In preparing for the examining trial, counsel should become familiar with: 1. The elements of each of the offenses alleged; 2. The law of the jurisdiction for establishing probable cause; 3. Factual information that is available concerning probable cause; 4. The subpoena process for obtaining compulsory attendance of witnesses at an examining trial and the necessary steps to be taken in order to obtain a proper record of the proceedings; 5. The potential impact on the admissibility of any witness’s testimony if the witness is later unavailable at trial; 6. The tactics of calling the client as the witness; and 7. The tactics of proceeding without discovery materials.

D. Counsel should meet with the client prior to the examining trial. Counsel must evaluate and advise the client regarding the consequences of waiving an examining trial and the tactics of full or partial cross-examination.

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E. If counsel becomes aware that the client is the subject of a grand jury investigation, counsel should consult with the client to discuss the grand jury process, including the advisability and ramifications of the client testifying. Counsel should examine the facts in the case and determine whether the prosecution has fulfilled its obligation under Texas law to present exculpatory evidence and should make an appropriate record in that regard. Upon return of an indictment, counsel should determine if proper notice of the proceedings was provided and should obtain the record of the proceeding to determine if procedural irregularities or errors occurred that might warrant a challenge to the proceedings such as a writ of habeas corpus or a motion to quash the indictment.

Guideline 3.3 Competency to Stand Trial A. The client must be able to understand, assist counsel, and participate in the proceedings against the client in order to stand trial or enter a plea. Counsel is often in the best position to discern whether the client may not be competent to stand trial.

B. Counsel should be familiar with Code of Criminal Procedure Article 46B, which governs proceedings surrounding incompetence to stand trial.

C. During the initial interview with the client, counsel should note signs that a mentally ill or developmentally disabled client may not be competent to stand trial. Signs include, but are not limited to: inability to communicate with counsel; delusions; psychosis; intellectual inability to comprehend the proceedings; and inability to remember or articulate the circumstances of arrest.

D. Counsel should request mental health records from the client’s mental health provider and history of psychiatric treatment in the jail, if any.

E. If counsel believes the client may be incompetent to stand trial, counsel should file a motion to have the client examined for competency. The motion to have a client examined for competency may be supported by affidavits setting out the facts on which the suggestion of incompetence is made.

F. If counsel has determined that the client may be incompetent to stand trial, and it appears that transporting the client to and from court for routine proceedings at which the client’s presence is not needed may cause disruption or undue stress for the client, counsel should consider requesting that the client not be transported to court unless or until the client’s presence is necessary.

G. If the court finds that there is some evidence that would support a finding of incompetence, the judge is required to stay all other proceedings in the case and order a competency evaluation.

Counsel should facilitate setting up the competency evaluation as soon as possible. The sooner the evaluation is completed, the sooner the client can receive the mental health treatment that the client may need. Courts often have a list of professionals who have been approved to provide these evaluations.

H. Counsel should investigate competency restoration treatment options including outpatient or community competency restoration.

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If client is in custody while awaiting competency restoration, counsel should communicate with the Sheriff’s office regarding when the client will be transported to the hospital or treatment program.

J. To the extent it is possible to communicate with client, counsel should keep the client informed of when the client will be going to the hospital.

K. Counsel should provide contact information to the social workers at the hospital and stay in touch with the social worker regarding the client’s status.

L. When the client is returned from the hospital after competency restoration treatment, counsel should request that the client’s case be placed back on the docket as quickly as possible to prevent the client from decompensating upon return to the jail, but before the case can be resolved.

Guideline 3.4 Prosecution Requests for Non-Testimonial Evidence Counsel should be familiar with and understand the law governing the prosecution’s power to require a client to provide non-testimonial evidence, such as handwriting exemplars and physical specimens, the circumstances in which a client may refuse to do so, the extent to which counsel may participate in the proceedings, and the record of the proceedings required to be maintained.

Guideline 4.1 Investigation A. Counsel has a duty to conduct, or secure the resources to conduct, an independent case review and investigation as promptly as possible. Counsel should, regardless of the client’s wish to admit guilt, determine whether the charges and disposition are factually and legally correct and inform the client of potential defenses to the charges. Counsel should explore all avenues leading to facts relevant both to the merits and to the penalty in the event of conviction. In no case should counsel delay a punishment phase investigation based on the belief that the client will be found not guilty or that the charges against the client will otherwise be dismissed.

B. Sources of review and investigative information may include the following: 1. Charging documents, statutes, and case law The arrest warrant, accusation, complaint, and information or indictment documents, along with any supporting documents used to establish probable cause, should be obtained and examined to determine the specific charges that have been brought against the client. The relevant statutes and precedents should be examined to identify: a. The elements of the offense with which the client is charged; b. The defenses, ordinary and affirmative, that may be available, as well as the proper manner and timeline for asserting any available defenses; c. Any lesser included offenses that may be available; d. Any defects in the charging documents, constitutional or otherwise, such as statute of limitations or double jeopardy; and

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e. The applicable punishment range for the charged offense and all potential lesser included offenses.

2. The client If not previously conducted, an in-depth interview of the client should be conducted as soon as possible and appropriate after appointment or retention of counsel. The interview with the client should be used to obtain information as described above under the performance guideline applicable to the initial interview of the client. Information relevant to sentencing also should be obtained from the client when appropriate.

3. Potential witnesses Counsel should consider whether to interview potential witnesses, including any complaining witnesses, others adverse to the client, and witnesses favorable to the client.

If counsel conducts interviews of potential witnesses adverse to the client, counsel should attempt to do so in the presence of an investigator or other third person in a manner that permits counsel to effectively impeach the witness with statements made during the interview.

4. The police and prosecution Counsel should utilize available discovery procedures to secure information in the possession of the prosecution or law enforcement authorities, including police reports, unless a sound tactical reason exists for not doing so.

5. The courts When possible, counsel should request and review any tapes or transcripts from previous hearings in the case. Counsel also should review the client’s prior court file(s) when appropriate.

6. Information in the possession of third parties When appropriate, counsel should seek a release or court order to obtain necessary confidential information about the client, co-defendant(s), witness(es), or victim(s) that is in the possession of third parties. Counsel should be aware of privacy laws and other requirements governing disclosure of the type of confidential information being sought.

7. Physical evidence When appropriate, counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant to the offense or sentencing and counsel should examine any such physical evidence. Upon completion of the inspection of the physical evidence, counsel should determine whether independent analysis or testing of the evidence is appropriate and, if so, seek the services of a qualified expert to complete such analysis or testing.

8. The scene When appropriate, counsel or an investigator should attempt to view the scene of the alleged offense as soon as possible after counsel is appointed or retained. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, lighting conditions, and seasonal changes).

Counsel should consider the taking of photographs and the creation of diagrams or charts of the actual scene of the offense.

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9. Expert assistance Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a. The preparation of the defense; b. Adequate understanding of the prosecution's case; c. Rebut the prosecution's case or provide evidence to establish any available defense; d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.

10. Mental Health Records If representing a client with mental illness or a developmental disability, counsel should seek available mental health records (e.g., records of previous court cases in which mental health issues may have been raised; mental health treatment records, whether institutional or in the community). Counsel should consider obtaining these records using a HIPAA (Health Insurance and Portability Act) release instead of a subpoena in order to maintain client confidentiality.

C. During case preparation and throughout trial, counsel should identify potential legal issues and the corresponding objections. Counsel should consider the tactics of when and how to raise those objections. Counsel also should consider how best to respond to objections that could be raised by the prosecution.

Guideline 4.2 Formal and Informal Discovery A. Counsel has a duty to pursue discovery procedures provided by the rules of the jurisdiction and such informal discovery methods as may be available. Counsel should pursue formal and informal discovery as soon as practicable and to the extent reasonably necessary to zealously and effectively represent the client.

B. Counsel should consider seeking discovery of the following items: 1. All information to which the client is entitled under Art. 39.14 of the Texas Code of Criminal Procedure; 2. Potential exculpatory information; 3. Potential mitigating information;

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4. Potential favorable information; 5. The names and addresses of all prosecution witnesses, their prior statements, and criminal record, if any; 6. Any other information that may be used to impeach the testimony of prosecution witnesses; 7. All oral or written statements by the client, and the details of the circumstances under which the statements were made; 8. The prior criminal record of the client and any evidence of other misconduct that the government may intend to use against the client; 9. Statements made by co-defendants; 10. Statements made by other potential witnesses; 11. All official reports by all law enforcement and other agencies involved in the case, e.g., police, arson, hospital, results of any scientific test(s); 12. All records of evidence collected and retained by law enforcement; 13. All video/audio recordings or photographs relevant to the case, as well as all recordings of transmissions by law enforcement officers, including radio and computer transmissions; 14. All books, papers, documents, tangible objects, buildings or places, or copies, descriptions, or other representations or portions thereof, relevant to the case; 15. All results or reports of relevant physical or mental examinations, and of scientific tests or experiments, or copies thereof; and 16. A written summary of any expert testimony the prosecution intends to use in its case-inchief at trial.

C. If counsel has made formal discovery demands, counsel should seek prompt compliance and sanctions for failure to comply.

D. Counsel should timely comply with all of the requirements governing disclosure of evidence by the client and notice of defenses and expert witnesses. Counsel should be aware of the possible sanctions for failure to comply with those requirements.

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Guideline 4.3 Theory of the Case During investigation and trial preparation, counsel should develop and continually reassess a theory of the case and develop strategies for advancing appropriate defenses and mitigating factors, including those related to mental health, on behalf of the client.

Guideline 5.1 Arraignment Counsel should preserve the client's rights at arraignment by: A. Entering a plea of not guilty in all but the most extraordinary circumstances when a sound tactical reason exists for not doing so; and B. Requesting a trial by jury, if failure to do so may result in the client being precluded from later obtaining a trial by jury.

Guideline 5.2 The Decision to File Pretrial Motions A. Counsel should consider filing an appropriate pretrial motion whenever a good-faith reason exists to believe that the client is entitled to relief that the court has discretion to grant.

B. The decision to file pretrial motions should be made after thorough investigation, and after considering the applicable law in light of the circumstances of each case. Among the issues that counsel should consider addressing in a pretrial motion are: 1. The pretrial custody of the client and the filing of a motion to review conditions of release; 2. The competency of the client; 3. The constitutionality of the relevant statute or statutes; 4. Potential defects in the charging process; 5. The sufficiency of the charging document; 6. Severance of charges or defendants; 7. The discovery obligations of the prosecution; 8. The suppression of evidence gathered as the result of violations of the Fourth, Fifth, Sixth, or Fourteenth Amendments to the United States Constitution, or corresponding or additional state constitutional provisions and statutes, including; a. The fruits of illegal searches or seizures; b. Involuntary statements or confessions;

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c. Statements or confessions obtained involuntarily or in violation of the client's right to counsel, or privilege against self-incrimination; and d. Unreliable identification evidence that would give rise to a substantial likelihood of irreparable misidentification.

9. The suppression of evidence gathered in violation of any right, duty, or privilege arising out of state or local law; 10. Change of venue; 11. Access to resources that or experts who may be denied to the client because of the client’s indigence; 12. The client's right to a speedy trial; 13. The client's right to a continuance in order to adequately prepare or present the client’s case; 14. Matters of trial evidence that may be appropriately litigated by means of a pretrial motion; and 15. Matters of trial or courtroom procedure.

C. Counsel should withdraw or decide not to file a motion only after careful consideration, and only after determining whether the filing of a motion may be necessary to protect the client's rights against later claims of waiver or procedural default. In making this decision, counsel should remember that a motion may have many objectives in addition to the ultimate relief requested by the motion. Counsel thus should consider whether: 1. The time deadline for filing pretrial motions warrants filing a motion to preserve the client's rights, pending the results of further investigation; 2. Changes in the governing law might occur after the filing deadline that could enhance the likelihood that relief ought to be granted; and 3. Later changes in the strategic and tactical posture of the defense case may occur that affect the significance of potential pretrial motions.

D. Counsel should request a full evidentiary hearing on any pretrial motion to the extent necessary to preserve the issue adequately for appellate review.

E. Counsel should consider the advisability of disqualifying or substituting the presiding judge. This consideration should include any information about the judge’s history in aligning with the prosecution on bail issues or motion rulings, any routine refusals of plea bargains, the client’s experience with the judge, and any specific dislike of counsel, other defense counsel, or defense counsel in general. The decision to disqualify a judge shall only be made when it is a reasoned strategy decision and in the best interest of the client. The final decision rests with counsel.

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F. Requests or agreements to continue a trial date should be discussed with the client before they are made.

G. Motions and writs should include citation to applicable state and federal law in order to protect the record for collateral review in federal courts.

Guideline 5.3 Filing and Arguing Pretrial Motions A. Motions should be filed in a timely manner in accordance with statute and local rule, should comport with the formal requirements of the court rules, and should succinctly inform the court of the authority relied upon. In filing a pretrial motion, counsel should be aware of the effect the filing might have upon the client's speedy trial rights.

B. If a hearing on a motion requires the taking of evidence, counsel's preparation for the evidentiary hearing should include: 1. Investigation, discovery, and research relevant to the claim advanced; 2. The subpoenaing of all helpful evidence and the subpoenaing and preparation of all helpful witnesses; 3. Full understanding of the burdens of proof, evidentiary principles, and trial court procedures applicable to the hearing, including the benefits and potential consequences and costs of having the client testify; 4. The assistance of an expert witness when appropriate and necessary; 5. Familiarity with all applicable procedures for obtaining evidentiary hearings prior to trial; and 6. Preparation and submission of a memorandum of law when appropriate.

C. In every case, counsel should examine whether it is appropriate to file a motion to suppress evidence or statements.

D. In every case that proceeds to trial, counsel should file timely and appropriate motions in limine to prohibit improper prosecutorial practices and to shield the jury from potentially improper evidence. Counsel should remain aware that the granting of a motion in limine alone will not preserve error on appeal.

E. Counsel should obtain a clear ruling on any pretrial motion on the record or in writing.

Guideline 5.4 Subsequent Filing of Pretrial Motions A. Counsel has a continuing duty to raise any issue that was not raised before trial, because the facts supporting the motion were not reasonably available at that time. Further, counsel shall be prepared, when appropriate, to renew a pretrial motion if new supporting information is disclosed in later proceedings.

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B. When appropriate, counsel should file an interlocutory appeal from the denial of a pretrial motion.

C. When negotiating the entry of a guilty plea, counsel should consider reserving the right to appeal the denial of a pretrial motion.

Guideline 6.1 The Plea Negotiation Process and the Duties of Counsel A. Under no circumstances should counsel recommend to the client acceptance of a plea agreement unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial. The amount of appropriate investigation will vary by case.

B. After appropriate investigation and case review, counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to trial, and in doing so counsel should fully explain the rights that would be waived by a decision to enter a plea and not to proceed to trial.

C. Counsel should obtain the consent of the client before entering into any plea negotiation.

Exploratory inquiries of the prosecution prior to obtaining client consent are permitted.

D. Counsel should keep the client fully informed of any continued plea discussions and negotiations and promptly convey to the client any offers made by the prosecution for a negotiated settlement.

Counsel may not accept any plea agreement without the client's express authorization.

E. Counsel should explain to the client those decisions that ultimately must be made by the client, as well as the advantages and disadvantages inherent in those choices. The decisions that must be made by the client after full consultation with counsel include whether to plead guilty or not guilty, whether to accept a plea agreement, and whether to testify at the plea hearing. Counsel also should explain to the client the impact of the decision to enter a guilty plea on the client’s right to appeal. Although the decision to enter a guilty plea ultimately rests with the client, if counsel believes the client’s decisions are not in the client’s best interest, counsel should attempt to persuade the client to change the client’s position.

F. The existence of ongoing tentative plea negotiations with the prosecution should not prevent counsel from taking steps necessary to preserve a defense.

G. Counsel should confirm that all conditions and promises comprising a plea agreement between the prosecution and defense are included in writing or in the transcript of plea.

Guideline 6.2 The Contents of the Negotiations A. In conducting plea negotiations, counsel should attempt to become familiar with any practices and policies of the particular jurisdiction, judge, and prosecution that may impact the content and likely results of a negotiated plea agreement.

B. In order to develop an overall negotiation plan, counsel should be fully aware of, and make the client fully aware of:

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1. The minimum and maximum term of imprisonment and fine or restitution that may be ordered, any mandatory punishment, and the possibility of forfeiture of assets; 2. The potential for recidivist sentencing, including habitual offender statutes and sentencing enhancements, and all other applicable sentencing statutes or case law; 3. If a plea involving community supervision or deferred adjudication community supervision is under consideration, the permissible conditions of community supervision with which the client must comply in order to avoid revocation or adjudication; 4. If a plea involving deferred adjudication community supervision is under consideration, special considerations regarding such a plea including sentencing alternatives in the event a motion to adjudicate is granted and the unavailability of a pardon; 5. If a plea of no contest is under consideration, differences between a no contest plea and a guilty plea including the potential collateral uses of such a plea in subsequent judicial proceedings; 6. Any registration requirements including sex offender registration and job-specific notification requirements; 7. The availability of appropriate diversion and rehabilitation programs; 8. The possible and likely place and manner of confinement; 9. The effects of good-time or earned-time credits on the sentence of the client, the period that must be served according to statute before the client becomes eligible for parole, and the general range of sentences for similar offenses committed by defendants with similar backgrounds; 10. Whether the sentence will run concurrently or consecutively to any past or current sentence and, if known, to any future sentence; 11. Possible revocation of probation, possible revocation of first offender status, or possible revocation of parole status if the client is serving a prior sentence on a parole status; 12. The possibility that an adjudication or admission of the offense could be used for crossexamination or sentence enhancement in the event of future criminal cases; 13. Deportation and other possible immigration consequences that may result from the plea; 14. Other consequences of conviction including, but not limited to, ineligibility for professional licensure and various government programs; prohibition from possessing a firearm; suspension of a motor vehicle operator’s license; civil monetary penalties; loss of civil rights; and potential federal prosecutions; 15. The effect on appellate rights; and 16. That plea bargains are not binding on the court.

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C. In developing a negotiation strategy, counsel should be completely familiar with: 1. Concessions that the client might offer the prosecution as part of a negotiated settlement, including, but not limited to: a. Not to proceed to trial on the merits of the charges; b. To decline from asserting or litigating any particular pretrial motions; c. An agreement to fulfill specified restitution conditions or to participate in community work or service programs, or in rehabilitation or other programs; d. Providing the prosecution with assistance in prosecuting or investigating the present case or other alleged criminal activity; e. Admitting identity and waiving challenges to proof or validity of a prior conviction record; f.

Foregoing appellate remedies; and

g. Asset forfeiture.

2. Benefits the client might obtain from a negotiated settlement, including, but not limited to an agreement: a. That the prosecution will not oppose the client's release on bail pending sentencing or appeal; b. That the client may enter a conditional plea to preserve the right to litigate and contest certain issues affecting the validity of a conviction; c. To dismiss or reduce one or more of the charged offenses either immediately, or upon completion of a deferred prosecution agreement; d. That the client will not be subject to further investigation or prosecution for uncharged alleged criminal conduct; e. That the client will receive, with the agreement of the court, a specified sentence or sanction or a sentence or sanction within a specified range; f.

That the prosecution will take, or refrain from taking, at the time of sentencing or in communications with the preparer of the official presentence report, a specified position with respect to the sanction to be imposed on the client by the court;

g. That the prosecution will not present, at the time of sentencing or in communications with the preparer of the official presentence report, certain information; and

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h. That the client will receive, or the prosecution will recommend, specific benefits concerning the client's place or manner of confinement or release on parole and the information concerning the client's offense and alleged behavior that may be considered in determining the client's date of release from incarceration.

D. In developing a negotiation strategy, counsel should be familiar with the position of any alleged victim with respect to conviction and sentencing. In this regard, counsel should: 1. Consider whether interviewing the alleged victim or victims is appropriate and, if so, who is the best person to do so and under what circumstances; 2. Consider to what extent the alleged victim or victims might be involved in the plea negotiations; 3. Be familiar with any rights afforded the alleged victim or victims under the Victim’s Rights Act or other applicable law; and 4. Be familiar with the practice of the prosecutor or victim-witness advocate working with the prosecutor and to what extent, if any, the prosecution defers to the wishes of the alleged victim.

E. In conducting plea negotiations, counsel should be familiar with: 1. The various types of pleas that may be agreed to, including a plea of guilty, a plea of nolo contendere, a conditional plea of guilty, and a plea in which the client is not required to personally acknowledge guilt; 2. The advantages and disadvantages of each available plea according to the circumstances of the case, including whether or not the client is mentally, physically, and financially capable of fulfilling requirements of the plea negotiated; 3. Whether the plea agreement is binding on the court and prison and parole authorities; 4. Possibilities of pretrial diversion; and 5. Any recent changes in the applicable statutes or court rules and the effective dates of those changes.

Guideline 6.3 The Decision to Enter a Plea of Guilty A. Counsel shall make it clear to the client that the client must make the ultimate decision whether to plead guilty. Counsel should investigate and explain to the client the prospective strengths and weaknesses of the case for the prosecution and defense, including the availability of prosecution witnesses (if known), relevant concessions and benefits subject to negotiation, and possible consequences of a conviction after trial. Counsel should not base a recommendation of a plea of guilty solely on the client’s acknowledgement of guilt or solely on a favorable disposition offer.

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B. Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement, and the advantages and disadvantages and the potential direct and collateral consequences of the agreement. Counsel shall advise the client if the agreement carries a risk that the client will be deported.

C. The decision to enter a plea of guilty rests solely with the client, and counsel should not attempt to unduly influence that decision. If counsel reasonably believes that rejection of a plea offer is in the best interest of the client, counsel should advise the client of the benefits and risks of that course of action. Similarly, if counsel reasonably believes that acceptance of a plea offer is in the best interest of the client, counsel should advise the client of the benefits and consequences of that course of action.

D. A negotiated plea should be committed to writing whenever possible.

E. Counsel should, whenever possible, obtain a written plea offer from the prosecution. If the prosecution does not provide counsel with a written plea offer, counsel should document in writing all the terms of the plea agreement offered to and accepted by the client.

F. When the client verbally rejects a fully explained and detailed plea offer, counsel may ask the client to sign a written rejection of plea offer statement.

Guideline 6.4 Entry of the Plea before the Court A. Prior to the entry of the plea, counsel should: 1. Make certain that the client understands the rights the client will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary, and intelligent; 2. Provide the client a full explanation of the conditions and limits of the plea agreement and the maximum punishment, sanctions, and collateral consequences the client will be exposed to by entering a plea, including whether the plea agreement is binding on the court and whether the court, having accepted the guilty plea, can impose a sentence greater than that agreed upon; 3. Explain to the client the nature of the plea hearing and prepare the client for the role the client will play in the hearing, including answering questions of the judge and providing a statement concerning the offense; and 4. If the plea is a non-negotiated plea, inform the client that once the plea has been accepted by the court, it may not be withdrawn after the sentence has been pronounced by the court.

B. Counsel should investigate and inform the client of the consequences of a plea or a finding of guilty in state court for any current or future federal prosecution.

C. When entering the plea, counsel should confirm that the full content and conditions of the plea agreement are placed on the record before the court.

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D. After entry of the plea, counsel should be prepared to address the issue of release pending sentencing. If the client has been released pending trial, counsel should be prepared to argue and persuade the court that the client's continued release is warranted and appropriate. If the client is in custody prior to the entry of the plea, counsel should, when practicable, advocate for and present to the court all reasons warranting the client's release on bail pending sentencing.

E. Subsequent to the acceptance of the plea, counsel should make every effort to review and explain the plea proceedings with the client and to respond to any client questions and concerns.

Guideline 7.1 General Trial Preparation A. Throughout preparation and trial, counsel should consider the theory of the defense and make decisions and act in a manner consistent with that theory.

B. The decision to seek to proceed with or without a jury during both the guilt and punishment phases of the trial rests solely with the client after consultation with counsel. Counsel should discuss the strategic considerations relevant to this decision with the client, including the availability of different sentencing options depending on whether sentence is assessed by a judge or jury and the need to obtain the prosecution’s consent to proceed without a jury on guilt.

Counsel should maintain a record of the advice provided to the client, as well as the client’s decision concerning trial. Counsel has an obligation to advise the court of the client’s decision in a timely manner.

C. Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: 1. Subpoenaing and interviewing all potentially helpful witnesses; 2. Subpoenaing all potentially helpful physical or documentary evidence; 3. Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.); 4. Obtaining and reading transcripts of prior proceedings in the case or related proceedings; 5. Obtaining photographs and preparing charts, maps, diagrams, or other visual aids of all scenes, persons, objects, or information that may assist the fact finder in understanding the defense; and 6. Obtaining and reviewing the court file of any co-defendant(s) and contacting codefendant’s counsel to obtain information about the co-defendant’s case and ascertain, to the extent possible, what the co-defendant‘s strategy was or will be, and whether the outcome of the client’s case will be affected thereby.

D. When appropriate, counsel should have the following materials available at the time of trial: 1. Copies of all relevant documents filed in the case;

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2. Relevant documents prepared by investigators; 3. Relevant documents provided by the prosecution; 4. Reports, test results, and other materials subject to disclosure; 5. Voir dire topics, plans, or questions; 6. An outline or draft of counsel’s opening statement; 7. Cross-examination plans for all possible prosecution witnesses; 8. Direct examination plans for all prospective defense witnesses; 9. Copies of defense subpoenas and defense subpoena returns; 10. Prior statements of all prosecution witnesses (e.g., transcripts, police reports); 11. Prior statements of all defense witnesses; 12. Reports from defense experts; 13. A list of all defense exhibits, and the witnesses through whom they will be introduced; 14. Originals and copies of all documentary exhibits; 15. Proposed jury instructions, with supporting case citations if available; 16. A list of the evidence necessary to support defense requests for jury instructions; 17. Copies of all relevant statutes and cases; and 18. An outline or draft of counsel’s closing argument.

E. If counsel or the prosecution will seek to introduce an audio or video tape or a DVD of a police interview or any other event, counsel should consider whether a transcript of the recording should be prepared and how the relevant portions of the recording will be reflected in the appellate record, when necessary, by stipulating those matters with the prosecution.

F. Counsel should be familiar with the rules of evidence, the law relating to all stages of the trial process, and legal and evidentiary issues that can be reasonably anticipated to arise at trial.

G. Counsel should decide if it is beneficial to secure an advance ruling on issues likely to arise at trial (e.g., use of prior convictions to impeach the client) and, when appropriate, counsel should prepare motions and memoranda for such advance rulings.

H. Throughout the trial process, counsel should endeavor to establish a proper record for appellate review. Counsel must be familiar with the substantive and procedural law regarding the

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preservation of legal error for appellate review, and make a record sufficient to preserve appropriate and potentially meritorious legal issues for such appellate review unless there are strategic reasons for not doing so. As part of this effort, counsel should request, whenever necessary, that all trial proceedings, including voir dire, be recorded.

I.

If appropriate, counsel should advise the client as to suitable courtroom dress and demeanor. If the client is incarcerated, counsel should be alert to the possible prejudicial effects of the client appearing before the jury in jail or other inappropriate clothing. When necessary, counsel should file pretrial motions seeking appropriate clothing for the client and that court personnel follow appropriate procedures so as not to reveal to jurors that the client is incarcerated. Counsel should attempt to prevent the client from being seen by the jury in any form of physical restraint.

J. Counsel should plan with the client the most convenient system for conferring throughout the trial. When necessary, counsel should seek a court order to have the client available for conferences.

K. If, during the trial, it appears to counsel that concessions to facts or offenses are strategically indicated, such concessions should be discussed with the client before they are made.

L. Throughout preparation and trial, counsel should consider the potential effects that particular actions may have upon sentencing if there is a finding of guilt.

Guideline 7.2 Voir Dire and Jury Selection A. Preparation 1. Counsel should be familiar with the procedures by which both petit and grand jury venires are selected in the particular jurisdiction and should be alert to any potential legal challenges to the composition or selection of the venires.

2. Counsel should be familiar with local practices and the individual trial judge's procedures for selecting a jury from a panel of the venire, and should be alert to any potential legal challenges to those procedures.

3. Prior to jury selection, counsel should seek to obtain a prospective juror list and the standard jury questionnaire if feasible, and counsel should seek access to and retain the juror questionnaires that have been completed by potential jurors. Counsel should also consider requesting use of a separate questionnaire that is tailored to the client’s case and should determine the court’s method for tracking juror seating and selection.

4. Counsel should tailor voir dire questions to the specific case. If appropriate, counsel should develop and file in advance of trial written voir dire questions that counsel would like the court to ask jurors. Among the purposes voir dire questions should be designed to serve are the following: a. To elicit information about the attitudes of individual jurors, which will inform counsel and client about peremptory strikes and challenges for cause;

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b. To determine jurors’ attitudes toward legal principles that are critical to the defense, including, when appropriate, the client’s decision not to testify; c. To preview the case for the jurors so as to lessen the impact of damaging information that is likely to come to their attention during the trial; d. To present the client and the defense case in a favorable light, without prematurely disclosing information about the defense case to the prosecution; and e. To establish a relationship with the jury, when the voir dire is conducted by counsel.

5. Counsel should be familiar with the law concerning voir dire inquiries so as to be able to defend any request to ask particular questions of prospective jurors.

6. Counsel should be familiar with the law concerning challenges for cause, peremptory strikes, and requests for additional strikes. Counsel also should be aware of the law concerning whether peremptory challenges need to be exhausted in order to preserve for appeal any challenges for cause that have been denied.

7. When appropriate, counsel should consider whether to seek expert assistance in the jury selection process.

8. Counsel should consider seeking assistance from a colleague or a defense team member to record venire panel responses and to observe venire panel reactions. Counsel also should communicate with the client regarding the client’s venire panel preferences.

B. Examining the Prospective Jurors 1. Counsel should take all steps necessary to protect the voir dire record for appeal, including, when appropriate, filing a copy of proposed voir dire questions not allowed by the court or reading such proposed questions into the record.

2. If the voir dire questions may elicit sensitive answers, counsel should consider requesting that questioning be conducted outside the presence of the remaining jurors.

3. In a group voir dire, counsel should avoid asking questions that may elicit responses that are likely to prejudice other prospective jurors or be prepared to examine such prejudices with the panel and address them appropriately.

4. Counsel should be familiar with case law regarding the client’s right to be present during individual voir dire. Counsel should fully discuss the risks and benefits of asserting this right with the client.

C. Challenges 1. Counsel should consider challenging for cause all persons about whom a legitimate argument can be made for actual prejudice or bias relevant to the case when it is likely to benefit the client.

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2. If challenges for cause are not granted, counsel should consider exercising peremptory challenges to eliminate such jurors.

3. In exercising challenges for cause or peremptory strikes, counsel should consider both the panelists who may replace a person who is removed and the total number of peremptory challenges available.

4. Counsel should make every effort to consult with the client in exercising challenges.

5. Counsel should be alert to prosecutorial misuse of peremptory challenges and should seek appropriate remedial measures.

6. Counsel should object to and preserve all issues relating to the unconstitutional exclusion of jurors by the prosecution.

7. Counsel should make every effort to preserve error in voir dire by urging proper objection or instruction.

Guideline 7.3 Opening Statement A. Prior to delivering an opening statement, counsel should ask for sequestration of witnesses, unless a strategic reason exists for not doing so.

B. Counsel should be familiar with the law of the jurisdiction and the individual trial judge's rules regarding the permissible content of an opening statement.

C. Counsel should consider the strategic advantages and disadvantages of disclosure of particular information during opening statement and of deferring the opening statement until the beginning of the defense case. Counsel’s opening statement also may incorporate these objectives: 1. To provide an overview of the defense case; 2. To identify the weaknesses of the prosecution's case; 3. To identify and emphasize the prosecution's burden of proof; 4. To summarize the testimony of witnesses, and the role of each witness in relationship to the entire case; 5. To describe the exhibits that will be introduced and the role of each exhibit in relationship to the entire case; 6. To clarify the jurors' responsibilities; 7. To establish counsel’s credibility with the jury; 8. To prepare the jury for the client’s testimony or failure to testify; and

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9. To state the ultimate inferences that counsel wishes the jury to draw.

D. Counsel should record, and consider incorporating in the defense summation, promises of proof the prosecution makes to the jury during its opening statement.

E. Whenever the prosecution oversteps the bounds of a proper opening statement, counsel should consider objecting, requesting a mistrial, or seeking a cautionary instruction, unless tactical considerations weigh against any such objections or requests. Such tactical considerations may include, but are not limited to: 1. The significance of the prosecution’s error; 2. The possibility that an objection might enhance the significance of the information in the jury's mind; and 3. Whether there are any rules made by the judge against objecting during the other attorney's opening argument.

Guideline 7.4 Confronting the Prosecution's Case A. Counsel should research and be fully familiar with all of the elements of each charged offense and should attempt to anticipate weaknesses in the prosecution’s case.

B. Counsel should attempt to anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for a directed verdict.

C. Counsel should consider the advantages and disadvantages of entering into stipulations concerning the prosecution's case.

D. In preparing for cross-examination, counsel should be familiar with the applicable law and procedures concerning cross-examination and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, counsel should be prepared to question witnesses as to the existence of prior statements that they may have made or adopted, and should consider doing so outside the presence of the jury.

E. In preparing for cross-examination, counsel should: 1. Consider the need to integrate cross-examination, the theory of the defense, and closing argument; 2. Consider whether cross-examination of each individual witness is likely to generate helpful information, and avoid asking unnecessary questions or questions that may hurt the defense case; 3. File a motion requesting the names and addresses of witnesses the prosecution might call in its case-in-chief or in rebuttal; 4. Consider a cross-examination plan for each of the anticipated witnesses;

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5. Be alert to inconsistencies or variations in a witness's testimony; 6. Be alert to possible variations between different witnesses' testimony; 7. Review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses; 8. When appropriate, obtain and review laboratory credentials and protocols and other similar documents for possible use in cross-examining expert witnesses; 9. When appropriate, review relevant statutes and local police regulations for possible use in cross-examining police witnesses; 10. Have prepared a transcript of all audio or video tape-recorded statements made by witnesses; 11. Be alert to issues relating to witness credibility, including bias and motive for testifying; and 12. Have prepared, for introduction into evidence, all documents that counsel intends to use during cross-examination, including certified copies of records such as prior convictions of witnesses and prior sworn testimony of witnesses.

F. Counsel should consider conducting a voir dire examination of potential prosecution witnesses who may not be competent to give particular testimony, including expert witnesses whom the prosecution may call. Counsel should be aware of the applicable law of the jurisdiction concerning competency of witnesses in general and admission of expert testimony in particular in order to be able to raise appropriate objections.

G. Prior to trial, counsel should ascertain whether the prosecution has provided copies of all prior statements of the witnesses it intends to call at trial. If disclosure is not timely made after the witness has testified, counsel should prepare and argue (a) motion(s) for: 1. A cautionary instruction; 2. Adequate time to review the documents or investigate and prepare further before commencing cross-examination, including a continuance or recess when necessary; 3. Exclusion of the witness’s testimony and all evidence affected by that testimony; 4. A mistrial; 5. Dismissal of the case; and 6. Any other sanctions counsel believes would remedy the violation.

H. If appropriate, at the close of the prosecution's case and out of the presence of the jury, counsel should move for a judgment of acquittal on each count charged. Counsel should request, if

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necessary, that the court immediately rule on the motion, in order that counsel may make an informed decision about whether to present a defense case.

Guideline 7.5 Presenting the Defense Case A. Counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, counsel should consider whether the client's interests are best served by not putting on a defense case, and instead relying on the prosecution's failure to meet its constitutional burden of proving each element beyond a reasonable doubt.

B. Counsel should discuss with the client all of the considerations relevant to the client's decision to testify. Counsel also should be familiar with the ethical responsibilities that may be applicable if the client insists on testifying untruthfully. Counsel should maintain a record of the advice provided to the client and the client’s decision concerning whether to testify. If the client does not follow counsel’s advice, counsel should consider having the client acknowledge in writing the advice provided by counsel.

C. The decision to testify rests solely with the client, and counsel should not attempt to unduly influence that decision. When counsel reasonably believes that testifying is in the best interest of the client, counsel should advise the client of the benefits and risks of that course of action.

Similarly, when counsel reasonably believes that not testifying is in the best interest of the client, counsel should advise the client of the benefits and consequences of that course of action.

D. Counsel should be aware of the elements and tactical considerations of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.

E. In preparing for presentation of a defense case, counsel should, when appropriate, do the following: 1. Consider all potential evidence that could corroborate the defense case, and the import of any evidence that is missing; 2. After discussion with the client, make the decision whether to call any witnesses; 3. Develop a plan for direct examination of each potential defense witness; 4. Determine the implications that the order of witnesses may have on the defense case; 5. Consider the possible use and careful preparation of character witnesses, along with the risks of rebuttal and wide-ranging cross-examination; 6. Consider the use of physical or demonstrative evidence and the witnesses necessary to admit it; 7. Determine what facts necessary for the defense case can be elicited through the crossexamination of the prosecution’s witnesses;

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8. Consider the need for expert witnesses and what evidence must be submitted to lay the foundation for the expert’s testimony; 9. Review all documentary evidence that may be presented; 10. Review all tangible evidence that may be presented; and 11. Be fully familiar with statutory and case law on objections, motions to strike, offers of proof, and preserving the record on appeal.

F. In developing and presenting the defense case, counsel should consider the implications the defense case may have for a rebuttal by the prosecution.

G. Counsel should prepare all witnesses for direct and possible cross-examination. Counsel shall advise all witnesses about the sequestration of witnesses, the purpose of that rule and the consequences of disregarding it. When appropriate, counsel also should advise witnesses of suitable courtroom dress and demeanor.

H. Counsel should systematically analyze all potential defense evidence for evidentiary problems.

Counsel should research the law and prepare legal arguments in support of the admission of each piece of testimony or other evidence.

I.

Counsel should conduct redirect examination as appropriate.

J. If an objection is sustained, counsel should make appropriate efforts to re-phrase the question(s) and make an offer of proof.

K. Counsel should guard against improper cross-examination by the prosecution.

L. At the close of the defense case, counsel should renew the motion for judgment of acquittal on each charged count.

M. Counsel should keep a record of all exhibits identified or admitted.

Guideline 7.6 Closing Argument A. Before argument, counsel should file and seek to obtain rulings on all requests for jury instructions in order to tailor or restrict the argument properly in compliance with the court’s rulings.

B. Counsel should be familiar with the substantive limits on both prosecution and defense summation.

C. Counsel should be familiar with the local rules and the individual judge's practice concerning time limits and objections during closing argument, and provisions for rebuttal argument by the prosecution.

D. In developing closing argument, counsel should review the proceedings to determine what aspects can be used in support of defense summation and, when appropriate, should consider:

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1. Highlighting weaknesses in the prosecution's case; 2. Describing favorable inferences to be drawn from the evidence; 3. Incorporating into the argument: a. The theory and the theme(s) of the case; b. Helpful testimony from direct and cross-examination; c. Verbatim instructions drawn from the jury charge; d. Responses to anticipated prosecution arguments; and e. Visual aids and exhibits; and 4. The effects of the defense argument on the prosecution's rebuttal argument.

E. Counsel should consider incorporating into counsel’s closing argument summation of the promises of proof the prosecution made to the jury during its opening.

F. Whenever the prosecution exceeds the scope of permissible argument, counsel should consider objecting, requesting a mistrial, or seeking a cautionary instruction unless tactical considerations suggest otherwise. Such tactical considerations may include, but are not limited to: 1. Whether counsel believes that the case will result in a favorable verdict for the client; 2. The need to preserve the objection for appellate review; and 3. The possibility that an objection might enhance the significance of the information in the jury's mind.

Guideline 7.7 Jury Instructions A. Counsel should file proposed or requested jury instructions before closing argument.

B. Counsel should be familiar with the local rules and the individual judge’s practices concerning ruling on proposed instructions, charging the jury, use of standard charges, and preserving objections to the instructions.

C. Counsel always should submit proposed jury instructions in writing.

D. When appropriate, counsel should submit modifications to the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense. When possible, counsel should provide case law in support of the proposed instructions.

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E. When appropriate, counsel should object to and argue against improper instructions proposed by the prosecution.

F. If the court refuses to adopt instructions requested by counsel, or gives instructions over counsel's objection, counsel should take all steps necessary to preserve the record, including, when appropriate, filing a copy of proposed instructions or reading proposed instructions into the record.

G. During delivery of the charge, counsel should be alert to any deviations from the judge's planned instructions, object to deviations unfavorable to the client, and, when necessary, request additional or curative instructions.

H. If the court proposes giving supplemental instructions to the jury, either upon request of the jurors or upon their failure to reach a verdict, counsel should request that the judge state the proposed charge to counsel before it is delivered to the jury. Counsel should renew or make new objections to any additional instructions given to the jurors after the jurors have begun their deliberations.

I.

Counsel should reserve the right to make exceptions to the jury instructions above and beyond any specific objections that were made during the trial.

J. Counsel should move to discuss any jury notes or responses to jury notes regarding substantive matters in open court and on the record, and to include the actual notes and responses in the record for appellate purposes.

Guideline 8.1 Obligations of Counsel in Sentencing Among counsel's obligations in the sentencing process are: A. When a client chooses not to proceed to trial, to negotiate the plea agreement with consideration of the sentencing, correctional, financial, and collateral implications; B. To object and preserve error so that the client is not harmed by inaccurate information or information that is not properly before the court in determining the sentence to be imposed; C. To seek and present to the court all reasonably available mitigating and favorable information that is likely to benefit the client; D. To seek the least restrictive and burdensome sentencing alternative that is most acceptable to the client, and that can reasonably be obtained based on the facts and circumstances of the offense, the client's background, the applicable sentencing provisions, and other information pertinent to the sentencing decision; E. To object to all information presented to the court that may harm the client and that is not shown to be accurate and truthful or is otherwise improper, and to seek to strike such information from the text of the presentence investigation report before distribution of the report; F. To consider the need for and availability of sentencing specialists, and to seek the assistance of such specialists whenever possible and warranted; and

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G. To identify and preserve legal and constitutional issues for appeal.

Guideline 8.2 Sentencing Options, Consequences and Procedures A. Counsel should be familiar with the sentencing provisions and options applicable to the case, including: 1. The minimum and maximum term of imprisonment and fine or restitution that may be ordered, any mandatory punishment, and the possibility of forfeiture of assets; 2. The potential for recidivist sentencing, including habitual offender statutes and sentencing enhancements, and all other applicable sentencing statutes or case law; 3. If a sentence involving community supervision or deferred adjudication community supervision is possible, the permissible conditions of community supervision with which the client must comply in order to avoid revocation or adjudication; 4. If a sentence involving deferred adjudication community supervision is possible, special considerations regarding such a sentence including sentencing alternatives in the event a motion to adjudicate is granted and the unavailability of a pardon; 5. The availability of appropriate diversion and rehabilitation programs; and 6. Applicable court costs.

B. Counsel should be familiar with direct and collateral consequences of the sentence and judgment, including: 1. The possible and likely place and manner of confinement; 2. The effects of good-time or earned-time credits on the sentence of the client, the period that must be served according to statute before the client becomes eligible for parole, and the general range of sentences for similar offenses committed by defendants with similar backgrounds; 3. Whether the sentence will run concurrently or consecutively to any past or current sentence and, if known, to any future sentence; .

4. Any registration requirements, including sex offender registration and job-specific notification requirements; 5. Possible revocation of probation, possible revocation of first offender status, or possible revocation of parole status if the client is serving a prior sentence; 6. The possibility that an adjudication or admission of the offense could be used for crossexamination or sentence enhancement in the event of future criminal cases; 7. Deportation and other possible immigration consequences that may result from the plea; and

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8. Other consequences of conviction including, but not limited to, ineligibility for professional licensure and various government programs; prohibition from possessing a firearm; suspension of a motor vehicle operator’s license; civil monetary penalties; loss of civil rights; and potential federal prosecutions.

C. Counsel should be familiar with the sentencing procedures, including: 1. The effect that plea negotiations may have upon the sentencing discretion of the court; 2. The procedural operation of the applicable sentencing system, including concurrent and consecutive sentencing; 3. The practices of those who prepare the sentencing services plan or presentence report, and the client’s rights in that process; 4. Access to the sentencing services plan or presentence report by counsel and the client; 5. The defense sentencing presentation and sentencing memorandum; 6. The opportunity to challenge information presented to the court for sentencing purposes; 7. The availability of an evidentiary hearing to challenge information, and the applicable rules of evidence and burdens of proof at such a hearing; and 8. The participation that victims and prosecution or defense witnesses may have in the sentencing proceedings.

Guideline 8.3 Preparation for Sentencing In preparing for sentencing, counsel should consider the need to: A. Inform the client of the applicable sentencing requirements, options, and alternatives, and the likely and possible consequences of the sentencing alternatives; B. Maintain regular contact with the client prior to the sentencing hearing, and inform the client of the steps being taken in preparation for sentencing; C. Obtain from the client and other sources relevant information concerning such subjects as the client’s background and personal history, prior criminal record, employment history and skills, education, medical history and condition, and financial status, and obtain from the client sources through which the information provided can be corroborated; D. Inform the client of the client’s right to speak at the sentencing proceeding and assist the client in preparing the statement, if any, to be made to the court, considering the possible consequences that any admission of guilt may have upon an appeal, subsequent retrial, or trial on other offenses;

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E. Inform the client of the effects that admissions and other statements may have upon an appeal, retrial, parole proceedings, or other judicial proceedings, such as forfeiture or restitution proceedings; F. Prepare the client to be interviewed by the official preparing the presentence report and seek adequate time for the client to examine the presentence report, if one is utilized by the court; G. Inform the client of the sentence or range of sentences counsel will ask the court to consider; if the client and counsel disagree as to the sentence or sentences to be urged upon the court, counsel shall inform the client of the client’s right to speak personally for a particular sentence or sentences; and H. Collect documents and affidavits to support the defense position and, when relevant, prepare witnesses to testify at the sentencing hearing; when necessary, counsel should specifically request the opportunity to present tangible and testimonial evidence and use subpoenas to secure relevant documents and witnesses.

Guideline 8.4 The Official Presentence Report Counsel should be familiar with the procedures concerning the preparation, submission, and verification of the presentence investigation report or similar document. In addition, counsel should: A. Determine whether a presentence report will be prepared and submitted to the court prior to sentencing; if preparation of the report is optional, counsel should consider the strategic implications of requesting that a report be prepared; B. Provide to the official preparing the report relevant information favorable to the client, including, when appropriate, the client's version of the offense, and supporting evidence; C. Attend any interview of the client by an agency presentence investigator, if there is a significant risk that information damaging to the client will be obtained unless counsel intervenes; D. Review the completed report; E. Take appropriate steps to preserve and protect the client's interests, including requesting that a new report be prepared with the challenged or unproved information deleted before the report is distributed to correctional and parole officials, when the defense challenges information in the presentence report as being erroneous or misleading and: 1. The court refuses to hold a hearing on a disputed allegation adverse to the client; 2. The prosecution fails to prove an allegation; or 3. The court finds an allegation not proved; and F. When appropriate counsel should request permission to see copies of the report to be distributed in order to verify that challenged information actually has been removed from the report.

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Guideline 8.5 The Prosecution's Sentencing Position A. Counsel should attempt to determine, unless there is a sound tactical reason for not doing so, whether the prosecution will advocate that a particular type or length of sentence be imposed.

B. If a written sentencing memorandum is submitted by the prosecution, counsel should request to see the memorandum and verify that the information presented is accurate; if the memorandum contains erroneous or misleading information, counsel should take appropriate steps to correct the information unless there is a sound strategic reason for not doing so.

C. If the defense request to see the prosecution memorandum is denied, an application to examine the document should be made to the court or a motion made to exclude consideration of the memorandum by the court and to prevent distribution of the memorandum to parole and correctional officials.

Guideline 8.6 The Defense Sentencing Memorandum Counsel should prepare and present to the court a defense sentencing memorandum when there is a strategic reason for doing so. Among the topics counsel may wish to include in the memorandum are: A. Challenges to incorrect or incomplete information in the official presentence report or any prosecution sentencing memorandum; B. Challenges to improperly drawn inferences and inappropriate characterizations in the official presentence report or any prosecution sentencing memorandum; C. Information contrary to that before the court and that is supported by affidavits, letters, and public records; D. Information favorable to the client concerning such matters as the offense, mitigating factors and relative culpability, prior offenses, personal background, employment record and opportunities, educational background, and family and financial status; E. Information that would support a sentencing disposition other than incarceration, such as the potential for rehabilitation or the nonviolent nature of the crime; F. Information concerning the availability of treatment programs, community treatment facilities, and community service work opportunities; and G. Presentation of a sentencing proposal.

Guideline 8.7 The Sentencing Process A. Counsel should be prepared at the sentencing proceeding to take the steps necessary to advocate fully for the requested sentence and to protect the client's interest.

B. Counsel should be familiar with the procedures available for obtaining an evidentiary hearing before the court in connection with the imposition of sentence.

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C. In the event there will be disputed facts before the court at sentencing, counsel should consider requesting an evidentiary hearing. If a sentencing hearing will be held, counsel should ascertain who has the burden of proving a fact unfavorable to the client, be prepared to object if the burden is placed on the defense, and be prepared to present evidence, including testimony of witnesses, to contradict erroneous or misleading information unfavorable to the client.

D. When information favorable to the client will be disputed or challenged, counsel should be prepared to present supporting evidence, including testimony of witnesses, to establish the facts favorable to the client.

E. If the court has the authority to do so, counsel should request specific orders or recommendations from the court concerning the place of confinement, parole eligibility, psychiatric treatment or drug rehabilitation, permission for the client to surrender directly to the place of confinement, and against deportation/exclusion of the client.

F. When appropriate, counsel should prepare the client to personally address the court.

Guideline 8.8 Self-Surrender If a custodial sentence has been imposed, counsel should consider requesting a stay of execution of the judgment to permit the client to report directly to the place of confinement.

Guideline 8.9 Expungement of Record After final disposition of the case, counsel should inform the client of any procedures available for requesting that the client’s records in the case be expunged and, if such procedures may be available in the client’s case, when and under what conditions the client may pursue an expunction.

Guideline 9.1 Duties of Defense Counsel in Post-Trial Proceedings A. A client’s right to counsel, and counsel’s responsibilities to the client, do not terminate upon conviction, imposition of sentence, or order of deferred adjudication community supervision.

B. Regardless of whether appointed or retained, and irrespective of the terms of any contract or legal services agreement, counsel must continue representation of the client until counsel has been formally granted permission to withdraw as counsel of record. Counsel shall continue to represent the client until appeals are exhausted, including in motion for new trial proceedings.

C. If the client wishes to pursue post-trial remedies, counsel should do the following prior to seeking to withdraw as counsel for post-trial proceedings: 1. Notify the trial court in advance if the client will submit an affidavit of indigency and may require immediate appointment of post-trial counsel; and 2. If arrangements have not been made for new counsel by the day of the verdict, assist the client in filing a written notice of appeal and in requesting prompt appointment of posttrial counsel.

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Guideline 9.2 Education, Training and Experience of Defense Counsel in Post-Trial Proceedings To provide competent, quality representation in post-trial proceedings, counsel must possess the education, training, and experience specified in Guideline 1.2 and in addition be familiar with the Rules of Appellate Procedure and any local rules of the courts of appeal.

Guideline 9.3 Motion for a New Trial A. Counsel should be familiar with the procedures applicable to a motion requesting a new trial including: 1. The time period for filing such a motion; 2. The effect it has upon the time to file a notice of appeal; 3. The grounds that can be raised; 4. The evidentiary rules applicable to hearings on motions for new trial, including the requirement that factual allegations in the motion, or affidavits in support of such factual allegations, must be sworn to; 5. The requirement that a motion for new trial be timely “presented” to the trial court in conformance with Rule of Appellate Procedure 21.6 in order to obtain a specific hearing date and preserve for appeal a claim that a request for a hearing was erroneously denied; 6. The time period for receiving a ruling on a motion for new trial, after which the motion is overruled by operation of law; and 7. The requirement that a trial court make written findings if a motion for new trial is granted.

B. If a judgment of guilty has been entered against the client after trial, counsel should consider whether it is appropriate to file a motion for a new trial with the trial court. In deciding whether to file such a motion, the factors counsel should consider include: 1. The likelihood of success of the motion, given the nature of the error or errors that can be raised; 2. The effect that such a motion might have upon the client's appellate rights, including whether the filing of such a motion is necessary to, or will assist in, preserving the client's right to raise on appeal the issues that might be raised in the new trial motion because of the opportunity to establish facts not in the trial record; 3. The effect filing a motion for new trial will have on the time period for perfecting an appeal; 4. Whether, after explaining to the client the client’s rights to submit a motion for new trial, the client desires that such a motion be filed; and

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5. The effect filing a motion for new trial may have on the availability of other post-trial remedies.

C. The decision to file a motion for new trial should be made after considering the applicable law in light of the circumstances of each case. Among the issues that counsel should consider addressing in a motion for new trial are: 1. Denial of the client’s right to counsel or right to be present during trial; 2. A fundamentally defective jury charge; 3. Jury misconduct; 4. Intentional suppression of witness testimony or other evidence tending to show the client’s innocence, preventing its production at trial; 5. Denial of a continuance based upon a critical missing witness; 6. Sufficiency of the evidence; and 7. Any claim that would require a new trial in the interest of justice.

D. In the event that a motion for new trial is granted, counsel should be prepared to draft and timely file a reply brief in opposition to any appeal of that decision filed by the prosecution.

Guideline 9.4 Protecting the Right to Appeal A. Following trial, counsel shall inform the client of the client’s right to appeal the judgment of the court and the action that must be taken to perfect an appeal. Counsel's advice to the client should include an explanation of the right to appeal the judgment of guilt and the right to appeal the sentence imposed by the court.

B. If the client wants to file an appeal and trial counsel will not be handling the appeal, counsel shall formally withdraw from the client’s case in conformance with Guideline 9.1, but only after taking all steps necessary to preserve the right to appeal. These steps include: 1. Assisting the client in filing written notice of appeal in accordance with the rules of the court; 2. Assisting in the preparation and filing of a motion for new trial, if any; and 3. If the client is indigent, assisting the client in requesting prompt appointment of appellate counsel.

C. If the client takes an appeal, trial counsel should cooperate in providing information to appellate counsel concerning the proceedings in the trial court. If an appeal is taken and the client requests bail pending appeal, trial counsel should cooperate with appellate counsel in providing information to pursue the request for bail.

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Guideline 9.5 Direct Appeal A. Counsel representing a client on direct appeal should be familiar with the procedures applicable to an appeal, including the rules specifying the time period for filing an appeal and the requirements for submission of the clerk’s and reporter’s records.

B. Counsel should, upon being contacted by the court or client concerning representation for an appeal, immediately consult with the trial court to ascertain relevant information concerning the perfection of the appeal and relevant filing deadlines, in order to confirm that counsel's acceptance of the case permits the maximum opportunity for proper representation.

C. When a client indicates a desire to appeal the judgment or sentence of the court, counsel should inform the client of any opportunity that may exist to be released on bail pending the disposition of the appeal and, if the client desires to pursue release pending appeal, file a motion requesting same including affidavits supporting such motion, and seek a hearing before the trial court.

D. Counsel should immediately contact trial counsel to obtain background information on the client, information on the nature of the issues presented, and to determine whether filing a motion for new trial, if available, is necessary to, or will assist in, preserving the client's right to raise on appeal the issues that might be raised in the new trial motion.

E. Retained counsel should, upon acceptance of appellate representation, immediately inform the court and the prosecution of the representation by filing the appropriate designation of counsel with the court, and all counsel, both retained and appointed, must submit the proper designations of the clerk's and reporter's records as mandated by the Rules of Appellate Procedure.

F. Counsel must review the clerk’s and reporter’s records to determine whether they are true, correct and complete in all respects. If errors or omissions are found, objections to the record must be immediately filed with the trial or appellate courts in order to obtain corrections or hearings necessary to protect the reliability of the record.

G. Counsel should fully review the appellate record for all reviewable errors, prepare a well researched and drafted appellate brief, file the brief in a timely manner and in accordance with all other requirements in the Rules of Appellate Procedure and any local rules, and notify the court of counsel’s desire to present oral argument in the case, when appropriate.

H. Counsel should consider preparing and filing a reply brief or a motion for rehearing if, under the circumstances, such is needed or required, particularly in order to make the court of appeals aware of legal or factual matters that may have been overlooked or mischaracterized or that may have newly developed.

Guideline 9.6 Right to File a Petition for Discretionary Review In the event that the intermediate appellate court’s decision is unfavorable to the client, counsel must advise the client in writing by certified mail of the client's right to file a petition for discretionary review and the action that must be taken to properly file such a petition. In advising the client of the right to file a petition for discretionary review, counsel should explain that:

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A. Review by the Court of Criminal Appeals is discretionary and not a matter of right, and that the Court of Criminal Appeals may refuse to review the client’s case without providing any reason for doing so; B. If the client is indigent, the client does not have the right to appointed counsel for the purpose of filing a petition for discretionary review but that, upon request, counsel may be appointed for this purpose; and C. If the client is indigent and if the petition for discretionary review is granted, the client does have the right to court-appointed counsel for further proceedings on the merits before the Court of Criminal Appeals.

Guideline 9.7 Petition for Discretionary Review A. Counsel representing a client on a petition for discretionary review should be familiar with the procedures applicable to such a petition, including the rules specifying the time period for filing a petition; the organization of a petition; the page limits for a petition and the procedure for requesting an expansion of the petition for good cause; and appendices and copies required for filing a petition.

B. If an intermediate appellate court has issued a decision unfavorable to the client, counsel should consider whether it is appropriate to file a petition for discretionary review with the Court of Criminal Appeals.

C. The decision to file a petition for discretionary review should be made after considering the applicable law in light of the circumstances of each case and the reasons for granting review specified in the Rules of Appellate Procedure. Reasons for review that counsel should consider presenting in a petition for discretionary review include: 1. Whether a court of appeals' decision conflicts with another court of appeals' decision on the same issue; 2. Whether a court of appeals has decided an important question of state or federal law that has not been, but should be, settled by the Court of Criminal Appeals; 3. Whether a court of appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the United States Supreme Court; 4. Whether a court of appeals has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance; 5. Whether the justices of a court of appeals have disagreed on a material question of law necessary to the court's decision; and 6. Whether a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision.

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D. In preparing a petition for discretionary review, counsel should fully review the appellate opinion for all reviewable errors, prepare a well researched and drafted petition, file the petition in a timely manner and in accordance with all other requirements in the Rules of Appellate Procedure, and notify the court of counsel’s desire to present oral argument in the case, when appropriate.

E. Should the Court of Criminal Appeals grant review on one or more issues presented in the petition, counsel should notify the client and prepare and timely file a brief on the merits in support of the grant of review.

F. Counsel should be prepared to draft and timely file a reply brief in opposition to any brief filed by the prosecution.

G. Counsel should be prepared to draft and timely file a motion for rehearing should the Court of Criminal Appeals deny relief after granting a petition for discretionary review and reviewing the case on the merits. Counsel should be prepared to timely defend against the prosecution’s motion for rehearing should the court reverse the conviction.

H. If the Court of Criminal Appeals summarily denies a petition for discretionary review, counsel should be prepared to draft and timely file a motion for rehearing if, in conformance with Rule of Appellate Procedure 79.2, there are substantial intervening circumstances justifying further review.

Guideline 9.8 Right to File a Petition for Certiorari to the United States Supreme Court A. In the event that the Court of Criminal Appeals either summarily denies a petition for discretionary review or denies relief after reviewing the client’s case on the merits, counsel should advise the client in writing by certified mail of the client's right to file a petition for certiorari before the United States Supreme Court and the action that must be taken to properly file such a petition. In advising the client of the right to file a petition for certiorari, counsel should explain that: 1. Review by the United States Supreme Court is discretionary and not a matter of right, and that the United State Supreme Court may refuse to review the client’s case without providing any reason for doing so; 2. If the client is indigent, client does not have the right to court-appointed counsel for the purpose of filing a petition for certiorari; and 3. If the client is indigent and if the petition for certiorari is granted, the client may request the appointment of counsel for further proceedings on the merits before the United States Supreme Court.

B. Considerations relevant to filing a petition for certiorari may include but are not limited to: 1. The Court of Criminal Appeals has decided an important federal question in a way that conflicts with the decision of another state court of last resort or federal court of appeals; or

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2. The Court of Criminal Appeals has decided an important question of federal law that has not been, but should be, settled by the United States Supreme Court, or has decided an important federal question in a way that conflicts with decision of the United States Supreme Court.

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Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

Topic: Instant Replay | Technology in the Courtroom

Speaker:

Clifford Duke

133 N Riverfront Blvd, LB2 Dallas, TX 75207-4339 (214) 875-2319 phone (214) 653-3539 fax cliff.duke@dallascounty.org

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

Instant Replay: Technology in the Courtroom How to take control and be the best prepared and most professional advocate in the room.

Clifford P. W. Duke Assistant Public Defender, Dallas County 133 N. Riverfront Blvd. LB2 Dallas, TX 75207 (214)-875-2319 cduke@dallacsounty.org So let’s face it: it’s pretty disappointing that we don’t have flying cars or deep space colonization yet. But technology has moved on and the days of flip boards and sharpies in the courtroom are at an end. Juries demand more. The attorney who can properly integrate technology into their presentation comes across as more organized, more knowledgeable, and most importantly: more credible.

This paper is going to look at technology from the perspective of the courtroom. Why are we implementing the use of technology in the courtroom?

How do we manage technology in and out of the courtroom? And most important: how do we get help dealing with all of this technology?

I.

Technology Inside the Courtroom A. Why Do We Care About Technology In The Courtroom?

Why worry about technology in a courtroom anyway? Attorneys are master orators. We possess the ability to evoke emotion and sway minds.

Facts and witnesses bend to our examination. Jurors hang on our every word, imprinting them on their souls till the end of their days.

Not quite. There are three concepts to our presentations we need to keep in mind: Retention; Education; and Credibility.

Words alone are not going to stick. “[U]nless our words, concepts, ideas are hooked onto an image, they will go in one ear, sail through the brain, and go out the other ear. Words are processed by our shortterm memory where we can only retain about seven bits of information (plus or minus 2) […]. Images, on the other hand, go directly into long-term memory where they are indelibly etched.” Dr. Lynell Burmakr, Visual Literacy (2002). We need more than just our words to etch our points into the jurors brains.

We are not just advocates. We are educators for our audiences. We must teach either judge or jury the facts in the light we want them to see it. And there is more than just one type of learner. Learning occurs redthrough visual, auditory, kinesthetic, and reading/writing input. 4 Types of Learning Styles: How do Students Learn Best?”, https://bau.edu/blog/types-of-learningstyles/ While most people are a blend of each learning style, there tends to be a dominant style for each person.

What kind of disservice are we giving our client by potentially ignoring venues to get knowledge to our judge and jurors?

Wile trying to teach our fact finders we have to think about why they would want to listen to us. There are three types of credibility: initial credibility (the credibility a presenter has before a speech), derived credibility (credibility gained during a speech), and terminal credibility (credibility of the speaker after a speech). Considering that most jurors will not have any previous

knowledge of most of us as litigants, our credibility hinges on our presentations.

Probably more important than what we’re teaching is how we are perceived in teaching it. Studies in expert witness confidence directly correlated not only a juror’s determination of a witnesses credibility based on how confident they presented, but found that it had a direct correlation to sentencing outcomes. Expert Witness Confidence and Juror Personailtiy: Their Impact on Credibiilty and Persuasion in the Courtroom, Cramer, Brodsky, and DeCoster, Jouranl of the American Psychiatry and the Law Online (March 2009). At the end of the day who do we want the jury to believe? Us? Or the State?

Technology is a tool that makes us a better attorney. When we can walk in looking like the most prepared and most knowledgeable we will come across as the most credible. As the most credible we control the narrative of the case against our clients. And the person controlling the narrative usually controls the verdict.

B. Audio Visual In The Courtroom What tools do you have at your disposal?

That will depend on your preparation. Will the tools already be there for you to plug into?

Or will you need to bring your bag of tricks with you.

1. What’s in your courtroom?

Probably the most important first question is what technology will you be expected to use. Will the courtroom you’re in have multiple monitors and plugins to the audio and visual equipment available? Or will you have a 1980’s overhead projector and be expected to bring transparency copies?

Take the time to reconnoiter your courtroom if you’re not already familiar with it. Talk to local counsel about how the State uses technology and what the judge has experience with. Bring your technology up ahead of time and make sure your presentations interface with the technology that exists.

Check every aspect of your technology and presentations. Do you need wifi or internet connections and are they available?

How are the speakers in the courtroom? Are plugins available and where? Don’t wait for the jury to be in the hallway before you start asking these questions.

2. BYO Tech What are your options if your courtroom doesn’t have what you want or need? The answer? Bring your own.

And what if there is technology available in the courtroom and it fails? Or doesn’t interact with your presentation the way you want or need it to? Bring your own.

Technology has come a long way in portability, quick usability, and affordability.

Let’s look at some problems and answers: No TVs or Monitors?

Bring your own projector and screen.

Portable screens from fifty to two hundred inches are portable cheap, less than $100, with a stand. A projector that you can plug directly into your laptop or attach to tablet or phone via Bluetooth is less than $100. Even if TVs are available don’t limit yourself to what’s there. If you like it better, bring your own.

No Audio or Crummy Audio

Nothing is worse than a great witness interview being completely inaudible over static crackled speakers. Portable speaker technology has come a long way and is easily hard wire or Bluetooth connected. Your high-quality audio that you can move around the courtroom for your jury to hear can be a huge advantage.

Document and item presentations Most courtrooms will have a doc cam you can use to project pictures, documents, and items onto a display. If not? Amazon has you covered for a USB Doc Cam for under $100.

Don’t like the doc cam? Make sure your documents scanned ahead of time and in a digital format to put in your presentation.

Want to throw some items in at the last minute? A portable scanner or even your Smartphone can get a document scanned or a picture of an exhibit up on the screen for your jury on the fly.

No Internet?

This can be trickier depending on where your courthouse is and the infrastructure available. If the courtroom WiFi won’t meet your needs bring your own router or even your own hotspot to provide your own internet connections. Your cellular provider will have a device you can tie into your data plan for little to no money.

Even cellular not an option out in the sticks? Consider having everything on your hard drive ahead. A 5 Terabyte external hard drive that connects by USB can have all of your discovery, videos, and presentations preloaded for your use. No data connection required.

Can’t Hook Up?

Nothing is more infuriating than not having the right plugin for your piece of technology.

In current use there are seemingly infinite adaptors and connections: lightning connections for your Apple ware; micro connections for your Android ware, USB, micro USB, and USB-C, HDMI, VGA, Display Port, Bluetooth Adapters, WiFi Adapters, and the list could go on.

Do your homework. Know what you’ll need. Test them out ahead of time and bring a backup. I guarantee the one cord you need either will not be there or will not work exactly when you need it. Cords are cheap and they’re always in demand.

Beyond your technical cords make sure to check the more mundane: power. Do you have access to an outlet? Multiple outlets?

Do you need an extension cord? A surge protector with multiple outlets? Take the time ahead of time to make sure you have what you need.

At the end of the day having your own tech on hand to supplement what may or may not be available is the ultimate ace in the hole.

You could get on Amazon at the time of writing this paper and have every piece of technology mentioned delivered in two days for under $1000.00. Get yourself the tools you need.

3. Adapt on the Fly Here is the one absolute rule that I can provide in this paper: Your Technology Will Fail. And it will probably do it at the most inopportune time.

When using technology to assist in your trial you have to be prepared for when that happens. Some of that is running through your presentations ahead of time. Know how the technology works where you’ll be, and

problems you may run into. Have your own technology to back you up.

Also have a backup plan. Know that if the computer crashes you can close it and go on with your cross. Print hard copies to have on hand. Practice a version of your voir dire, cross, or close with no technology to know how you could adapt. Make sure your trial partner, investigator, or IT person (we’ll talk about getting one of those later) knows what you are expecting to use when so they can try to fix it while you move along. Nothing will kill credibility faster than bumbling through trying to save a presentation that has decided to fail.

C. Power Point & Making It Work Power point is the flip board of the twenty-first century.

While there are alternatives to Microsoft such as Apple’s Keynote, Google’s Slides, or Adobe Spark Power Point is the go-to generally used presentation software. Many attorneys will use a power point presentation to assist during voir dire, open, or close. More advanced may have their power points set up to assist in a direct or cross examination. And it’s easy to do.

But Power Point or any visual aid, either digital or stone age, can become a crutch as easily as an enhancement to your trial. Pay attention to some basic do’s and don’ts, and make sure you’re using some simple tricks to look like a pro.

1.

Power Point Do’s and Don’ts

The number one rule for any visual aid is that it is there to assist you, not replace you.

The visual aid should help reinforce the point you are making, not distract from it or make it on its own. Here are some big do’s and don’ts for whatever visual aid you are using:

Don’t Read To Your Audience This rule speaks for itself. You should never read anything off of a slide to your audience. Find an image, or highlight a few words to emphasize your point. Remember that your visual presentation is to assist and reinforce your presentation, not make it for you.

The only exception to this rule is if you are using a document in power point that has been admitted into evidence. We’ll look at some tips and tricks you can use to highlight documents or exhibits that you may then read to your jury.

Font Type and Size Tiny words on a far away screen are pointless for helping with your presentation.

As a rule of thumb you should not have any font less than 20 point. Larger if you’re using a non-standard font. And don’t go crazy with all of the font options available. Just because a font looks fun does not mean that it is readable for your jury or that it will not distract from the point you are trying to make.

Use Animation in Moderation Power point has a lot of fun tools and options for animation and movement in your slide. Used sparingly they can enhance a presentation. But don’t have every word or picture spinning or bouncing onto the screen.

Remember you are the center of the show.

Your technology is there to assist. Not distract.

Contrast Contrast Contrast Black words on white screen may be boring but blue font on a blue screen is not helpful. Color is a great addition to any presentation, but make sure that your content

is standing out. Pick colors that contract and stand out as well as emphasize your points.

shape or line will produce a symmetrical shape or perfectly straight line.

As a general rule pick a dark background and light text for your slides to pop and information to stand out.

Stock Images & Removing Backgrounds

One Idea Per Slide While we’re trying to enhance memory through visual representations, don’t clutter your points. The burden of proof does not belong on the same slide as your rights to counsel. Keep your ideas separate and distinct, especially the ones you want sticking in your juror’s mind.

Don’t Overload Your Slide Many an attorney has been guilty of copying and pasting from the Code of Criminal Procedure and throwing it up on a screen. Do. Not. Do. This.

The 5 x 5 rule of Power Point is this: No more than five words per line. No more than five lines per slide. Remember that this visual is an enhancement to your presentation.

Have a picture up that reinforces your point. One or two words for jurors to hitch their memory to. Less is more.

2. Tips and Tricks Gone are the days of black text on a white screen with a simple spin animation.

Presentation software has added a lot of tricks and tools that are very user friendly and you don’t have to be an expert to use. Here are some easy features to look at to enhance your presentations.

Perfect Shapes & Lines Shapes and lines that are slightly askew and distract from your presentation. Hold down the “shift” button when laying your

Power Point has built in a huge database of stock photos to add into your presentations. Go to the “insert” menu, select “pictures”, and “stock images”. Search from photos, stickers, cutouts, or videos to use.

If you can’t find the image you like then jump out to the net. A quick Google search of the topic you’re thinking about will give you a wealth of options of images to choose from. Be careful to not use low resolution images, and to save the full sized photo by right clicking and selecting “save image as”.

If your image has more in it than you want to use you can crop or background removal tools built into power point. For advanced cropping go to “picture format” on the top bar and then “crop” on the far right.

You can crop your picture to specific shapes or sizes. If you want just an object from a picture you can remove the entire background by selecting the photo, going to “picture format” and “remove background”.

Morph Images & Custom Animation Instead of the set animations of the past you can move objects, pictures, or shapes in custom ways or even have one shape morph into another.

Custom animation is very easy.

Under your “add animation” tab select “motion path” to pick paths for your item, shape, or word to travel.

You may want your circle to turn to a square or your cop to a villain. To morph a shape you will need to duplicate a slide by right clicking on your current slide and selecting “duplicate slide.” Then selection

“transitions” from your top bar and select “morph”.

Screen Recording & Narration Want to include a portion of the body camera or witness interview video in your closing argument? You don’t need fancy video editing software. You can record activity on your screen and insert it as a video into your presentation. Click on ‘insert” on your top bar and on the far right hand side is “screen recording.” Power point will allow you to select what portion of your screen you want to record, when to start, and when to stop.

Want to get even fancier? You can record narration and annotation over your video as well. From your top bar select “slide show” and “record slide show”. Use your video options to records yourself narrating over the slide and making annotations as necessary.

Presentation Mode Shortcuts If you have never used presenter mode before it is an absolute must. Not only can you make notes and annotations that only you can see but you can see what slide is next, the total time of your presentation, or other customized information that you will see on your computer but your audience will not. To use presenter mode select “slide show” from your top bar and make sure “use presenter mode” is checked on the far right hand side.

Then when your computer is connected to your projector or the TVs in the courtroom you will have the information on your computer and your presentation for the audience. To see all the shortcuts that you can use simply press F1 while in presentation mode.

All of this is just a sampling of the options and toys you can use to enhance your presentations. None of it was learned through hours of study or classes. All of the above functions were from a 10 minute video with complete walk through on each task you can watch as many times as you want. Just go to YouTube and search “Power Point Tricks”, or for a specific function you’re trying to master. Check out that video at: https://youtu.be/zcITARGg3CQ or go find your own. You don’t have to become an expert, but becoming proficient is easy.

II. Technology outside the courtroom Technology in the courtroom is the end of the game. But what about technology outside the courtroom? How are you getting your discovery and what are your duties? How do you share discovery and trial preparation with your trial team? How are you protecting confidential or privileged information? How you manage your data outside the courtroom is as important as how you present it in.

A.

Communication & File Sharing

Trial is set in Austin. Your main office is in Houston. Co-Counsel is in Waco.

You have one expert in Dallas, another in El Paso, and one working remotely in the Bahamas. What are you supposed to do?

Two of your biggest concerns are communication and file sharing. And the primary concern on both of those is security.

While 300 hours of free AOL are tempting, it’s probably not the best choice for your client’s confidential information.

So what are your options for storage and sharing? They break down to two broad categories: Cloud Storage vs. Personal Servers. Think of both as a filling cabinet.

You access the filling cabinet through an

internet connection to either put in or access files.

For cloud storage, a company has hundreds and thousands of filing cabinets and rents drawer space to lots of people and companies.

Theoretically your cabinet drawer is secure, only you and people you give permission can get into it. That security depends on the company you’re using.

Despite some drastic changes in user’s ability to modify their security, Google received nearly 500,000 government requests for user account information and 220,000 requests for specific user information in 2020 alone.

Google Transparency Report, https://transparencyreport.google.com/userdata/overview?hl=en (October 16, 2021). It cannot be understated that when using any cloud storage your data is on someone else’s server.

By contrast a personal server is what it sounds like: a personal filing cabinet that can be accessed through internal networking or remotely via an internet connection.

Personal servers in the past were cost prohibitive for many small or solo practitioners. Now NAS (Network Attached Storage) devices are very reasonably priced, under $500 depending on size, and exceptionally user friendly. These devices are just like the hard drive on your computer but instead of being attached to a computer they are attached to an internet connection so they can be accessed on a personal network.

The upside to a personal network storage device is that short of being hacked or giving out your access information your network is secure. No one else owns it. The down side is that if the hardware fails, your data is lost.

When making your choice, it is important to do your research. If you choose

to use third-party cloud storage check their security standards and ratings. Even large companies like Google and Apple are not necessarily HIPPA compliant (discussed below), and your security may depend on what product you choose and what settings you have.

B.

HIPPA & Technology

When making considerations about security thinking about what records and documents we have must be a primary concern. While most attorneys are probably aware of HIPAA (the Health Insurance Portability and Accountability Act of 1996), not many attorneys realize how applicable it is to them.

HIPAA and the TMRPA (Texas Medical Records Privacy Act TMRPA) regulate any individual or business that creates, receives, stores, or work for someone that creates, receives, or stores Protected Health Information. TEXAS HEALTH AND SAFETY CODE §181.001(b)(2)(A-D).

What is Protected Health Information (PHI)? PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual. 45 C.F.R. §160.103 This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.” Id. So, if it’s medical information that can be tied to a specific person, it’s probably PHI. As attorneys there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMPA. For example, Mental Health records we receive

for a mitigation packet or a grand jury presentation, TDCJ records that include infirmary trips, SAFPF records that include counseling, UA results for a pre-trial check in, or discovery with EMT or blood draw records, all have PHI. The potentials are pretty limitless. Remember too that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.

What does it mean then that we are covered entities maintaining confidentiality of PHI? Obviously secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. We do not create PHI, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements.

The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004. HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306 It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why. The goal is that if there ever is a breach, we can show we did everything we could to avoid it. Here are some highlights of best practices: Encryption. Encryption renders PHI unreadable and undecipherable. The data can

only be read if a key or code is applied to decrypt the data. While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place. There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/bestencryption-software for some ideas.

Passwords. Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPPA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember. So instead of using a complex sequence of numbers, letters, and symbols use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980” Third Party Storage. Are you using another company to maintain your files? If so you’re going to need a business associates agreement. 45 CFR §164.308(b). A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself.

E-mail. Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing

ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: 1) End to end encryption 2) a business associates agreement with your email provider 3) make sure to configure your e-mail correctly 4) have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant emails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training.

TEX. HEALTH &SAFETY CODE 181.101(a) & (d).

Why do we care? The TMRPA, in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. TEXAS HEALTH AND SAFETY CODE §181.201 The Department of Health and Human Services published a final rule increasing the civil penalties for 2020.

For violations the covered entity did not know about fines can be between $119 and $59,522 per violation. If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation.

So what do we take away from this? It’s to remember that as we implement new technology and new ways of doing business into our practices we be aware of steps to make sure private client information stays private. A lot of us may be old hat to

encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

C. Electronic Duties

Discovery

&

Your

So much discovery is making a switch to fully digital. Files are emailed, portals are opened, and we now have terabytes of bodycam footage on every case.

What has changed for attorneys in our duties for discovery?

Texas Code of Criminal Procedure 39.14 allows for electronic duplication of items for discovery in the State’s possession.

Remember though that sometimes looking at the original is important. When necessary, assert your right to examine evidence under 39.14(a).

Of the discovery we receive it’s important to remember the new limitations on redisclosure. Without the permission of the Judge, or unless the information already made public, we cannot disclose information obtained in discovery to any third party.

Tex.Code.Crim.Proc 39.14(e) We are even required to redact identifying information for a complaining witness before reviewing with our client. Id. With so much discovery being fully electronic that directive can be more difficult. Keeping secure client files is even more important in a technological age.

III.

Getting Help

Let’s be honest, who in the world has time for all of this? Navigating security and

communication, downloading and reviewing discovery, creating audio visual presentations all while still figuring out how you’re going to even try this case. For the solo attorney it’s near impossible, and it’s not fair. Especially when you consider that your District or County Attorney’s probably has at least one, if not multiple, employees doing this type of work full time.

Most of us are aware of Ake v.

Oklahoma and its use to get expert assistance in our cases. We hire DNA experts, firearms experts, child and forensic psychologists.

Why not technological experts to help us distill and prepare technology for our courtroom presentations?

The central premise of Ake was to put a criminal defendant on more equal footing with the State prosecuting them. “[M]ere access to the courthouse doors does not by itself assure” a fair trial. Ake v. Oklahoma, 470 U.S. 68, 77 (1985). Defendants needed “access to the raw materials integral to the building of an effective defense.” Id. “In an adversarial system due process requires at least a reasonably level playing field at trial.”

DeFreece v. State, 848 S.w.2d 150 (TEx. Crim. App. 1993).

The burden will be on us to push the envelope to obtain this help. One of the central analysis points for any Ake motion is that the defendant make a showing of centrality and novelty of an area of the trial.

“The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” Ehrke v.

State, 459 S.W.3d 606, 615 (Tex. Crim. App. 2015) citing Ake, at 77. “The burden is on the defendant to provide concrete reasons for why the expert should be appointed. Id.

citing Ex parte Jimenez, 364 S.W.3d 866, 877-78 (Tex.Crim.App. 2012).

Having an IT Person to review what digital discovery you receive, help you manipulate that digital media for presentation, and review the State’s digital presentations for accuracy and admissibility is an expert’s job. So make those concrete reasons to your judge. In your motion to the court to show how you need assistance to prepare the presentation of this digital information for the jury. Lay out how you do not have the technical expertise to do so.

Make a record of what the State has available to them and the violation of Due Process, Equal Protection, and Effective Assistance of Counsel when your client is not allowed the same tools. Push the envelope and make sure your client has the same access to the game as those people prosecuting them.

IV.

Conclusion

Technology has clearly changed the way we practice law. And it will continue to do so for the foreseeable future. Looking backward at the exponential growth of technology over the last seventy years we can only imagine where we’ll be seventy years from now.

And we have to be on the cutting edge. When police and prosecutors are using technology against our clients, we have to be right there pushing back and using the same tools against them. Let it be fun. Learn something new. Try out a new trick that makes a juror sit up and pay attention or a prosecutor grind their teeth. Ask a question.

Find someone smarter. And learn how to use your technology in the courtroom.

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

Topic: Scouting | Voir Dire

Speaker:

Jeep Darnell 310 N Mesa St. Ste 212 El Paso, TX 79901-1301 (915) 532-2442 phone (915) 532-4549 fax jedarnell@jdarnell.com www.jdarnell.com

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

Voir Dire Jolly Roger Seminar Texas Criminal Defense Lawyers Project CLE December 10, 2021 Denton, Texas

Jeep Darnell jedarnell@jdarnell.com Jim Darnell, P.C. 310 N. Mesa St., Ste. 212 El Paso, Texas 79901 Phone: (915) 532-2442 Fax: (915) 532-4549

I.

INTRODUCTION I have a love-hate relationship with voir dire.

I know in my

heart and in my mind that it is the most critical part of every trial.

I also know that I will work harder preparing for, and be more exhausted after voir dire than I will regarding any other piece of the trial. The truth is that during voir dire I have to make myself vulnerable to the jury in an attempt to allow the potential jurors to make themselves vulnerable with me.

I want them, a group of

perfect strangers, to open up to me about their deepest fears, long held beliefs, and personal biases.

All the while, I have to make

them appreciate and respect me and what I am trying to do by representing my client.

The following is a cheat sheet of sorts

to use during trial so that you have the law and objections handy and can concentrate on the real purpose of voir dire, to determine those jurors who you DO NOT want sitting on your jury panel.

II.

THE LAW AThe purpose of voir dire is to (1) elicit information that

would reveal any basis for a challenge for cause, such as a bias for or against a party; (2) facilitate the intelligent use of peremptory challenges, which may be exercised without a stated reason; and (3) educate the venire on the party's theory of the case and establish rapport with the prospective jury members.@

Everitt

v. State, No. 01-15-01023-CR, 2017 Tex. App. LEXIS 7472, at *4-5 (Tex. App.CHouston [1st Dist.] Aug. 8, 2017) (citing 2

Sanchez v.

State, 165 S.W.3d 707, 710-11 (Tex. Crim. App. 2005));

Wappler v.

State, 183 S.W.3d 765, 772 (Tex. App.CHouston [1st Dist.] 2005).

A question by counsel Ais proper if it seeks to discover a juror=s views on an issue applicable to the case.@ Simpson v. State, 1993 Tex. App. LEXIS 3287, *3; 1993 WL 503270 (Tex. App. - Houston [1st Dist.] 1993)(unpublished).

With the above in mind, Athe trial court does have the authority to impose reasonable restrictions on the exercise of voir dire examination for various reasons, among them to curb the prolixity of what can become the lengthiest part of a criminal proceeding.@ Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988).

However, while A[t]he court may intervene in voir dire for the purpose of clarification or in order to expedite the proceedings. It is not the court's function to rehabilitate venirepersons.@ 936 S.W.2d 343, 347 (Tex. App.CFort Worth 1996).

Post v. State,

This is because

A[a] defendant is entitled to have jurors who can [for example] consider the full range of punishment applicable to his case.@

Id.

at 346 (citing Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 941, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993)).

Accordingly, A[a] defendant . . . has a right to

challenge any venireperson who cannot consider the minimum punishment. Id. (Citing Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 1996); Westbrook v. State, 846 S.W.2d 155, 160 (Tex. 3

App.--Fort Worth 1993, no pet.)). A[W]here it is clear from the responses that a juror is unable to consider the full range of punishment, he is deemed biased as a matter of law, and a challenge for cause should be granted.@

Id. (citing Cooks v. State, 844 S.W.2d

697, 709 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927, 113 S. Ct. 3048, 125 L. Ed. 2d 732 (1993)).

The statutory provisions related to jury selection are contained in chapter 35 of the Texas Code of Criminal Procedure.

The number

of peremptory challenges for either side are contained in art. 35.15.

Art. 35.16(a) contains the challenges for cause by either side.

(But see Butler v. State, 830 S.W.2d 125 (Tex. Crim. App. 1992).

Specific challenges for cause by the State are contained within art.

35.16(b).

Finally, defense specific challenges for cause are

contained within art. 35.16(c).

III. PRESERVING ERROR When a defense challenge for cause has been denied, A[i]n order to preserve error on a challenge for cause, an appellant must show: 1. The voir dire of the individual venireperson was recorded and transcribed; 2. The appellant at trial asserted a clear and specific challenge for cause clearly articulating the grounds therefore; 3.

After the challenge for cause is denied by the trial court, appellant uses a peremptory challenge on that juror; 4. All peremptory challenges are exhausted; 5. When all peremptory challenges have been exhausted, appellant makes a request for additional peremptory 4

challenges; 6. Finally, the defendant must assert that an objectionable juror sat on the case. The appellant should point out to the trial court that he is being forced to try the case with a juror seated whom he would have exercised a peremptory challenge had he had one.@

Cooks v. State, 844 S.W.2d 697, 721 (Tex. Crim.

App. 1992).

In order to preserve error when the Atrial court erroneously grants a State's challenge for cause and excludes a qualified juror,@ 1 Richardson v. State, 744 S.W.2d 65, 70 (Tex. Crim. App. 1987), defense counsel must make a timely objection, and then Amay establish harm simply by showing that the State exhausted all of its peremptory challenges. In such a case the court has effectively given the State the benefit of an additional peremptory challenge.@ Accordingly, it is probably a good practice to request

Id.

additional peremptory challenges to match the extra strikes the States was given.

Finally, if the trial court imposes an unreasonable time 1

See e.g. Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App. 1995)(Aa

venireman who categorically refuses to render a guilty verdict on the basis of only one eyewitness is not challengeable for cause on that account so long as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt.@) 5

limitation, in order to preserve error on the issue, defense counsel must use their allotted time wisely and asking proper questions.

Once the trial court stops the voir dire process, counsel must request additional time, and must make the court aware of the specific, additional questions that he or she would still like to ask the panel members.

Dhillon v. State, 138 S.W.3d 583, 590 (Tex. App.CHouston

[14th Dist.] 2004).

This can be done either by submitting the

questions in written form or dictating a bill of exception.

590-591.

Id.,

Finally, a final objection should be made to the final

make up of the jury, pointing out the jurors that counsel was not able to properly question.

6

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation December 10, 2021 SpringHill Suites Denton 1434 Centre Place Dr. Denton, TX 76205

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

Speaker:

Anne Burnham 2507 NW 36th St San Antonio, TX 78228-3918 (210) 431-5753 phone (210) 436-3413 fax aburnham@stmarytx.edu

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

Common Ethical Dilemmas for the Criminal Defense Attorney, and How to Avoid Them

By Anne Burnham The Texas Rules:

This paper will address some common ethical issues encountered by the modern criminal defense practitioner, how to avoid them and what rules control. As licensed professionals, Texas criminal defense lawyers are bound by the Texas Disciplinary Rules of Professional Conduct ("TDRPC"). These rules are located in the Texas Government Code, Title II, Subtitle G, Appendix A. An updated version of the Rules is also readily accessible on the State Bar of Texas website (Texasbar.com) in the "Grievance and Ethics" section under the "For Lawyers" tab. These rules are amended frequently, most recently on June 15, 2021 and July 1, 2021. This paper incorporates the most recent amendments to the rules.

Committee on Professional Ethics Opinions: When there is a question regarding the application of a rule, the Committee on Professional Ethics can issue an opinion on the matter. The committee consists of nine members that are appointed by the justices of the Texas Supreme Court. Tex. Gov’t. Code §81.091- 81.095. §81.091(a) authorizes the committee to write ethics opinions: “[t]he committee shall, either on its own initiative or when requested to do so by a member of the state bar, express its opinion on the propriety of professional conduct other than on a question pending before a court of this state.” Id. Before opinions are formally issued, they are posted on the State Bar of Texas website and open for State Bar member comments.

Other Valuable Ethics Resources: Another important resource I recommend book-marking, is the UT Tarlton Law Library's online ethics portal: https://tarlton.law.utexas.edu/texas-web-resources/texas-legal-ethics.

This resource contains links to many other Texas legal ethics resources, including a search engine to look up ethics opinions by either opinion number, or subject matter.

The Rules were recently amended to allow lawyers to disclose client confidential information, as needed, for the specific purpose of requesting ethics guidance. In the event an attorney cannot find the answer to an ethical dilemma by using the printed resources available to them, the State Bar of Texas has an Ethics Helpline for this purpose, which can be reached at (800) 532-3947. Also, when faced with an ethical dilemma, as members of TCDLA, we are fortunate to have a designated ethics hotline, manned by the TCDLA Ethics Committee, just for criminal defense attorneys. This number is (512) 646-2734 and messages are checked and returned regularly.

BEGINNING THE ATTORNEY-CLIENT RELATIONSHIP: CONTRACTS AND OTHER ISSUES Contracts: The most important aspect of beginning the attorney-client relationship is to fully address, in writing, the objectives of the representation, the scope of the representation (i.e, what is included), the limits of the representation (specifically what is not included), who the parties are (the client, and non-client payers), information that the lawyer’s responsibilities, 2

and the attorney-client privilege belong to the client only, who makes what decisions in the representation, how the client and attorney will communicate, the fee agreement (how much Money for what services, and when the money is owed), how additional expenses will be handled, a statement that no guarantees or promises are being made, explanation regarding e-discovery and inability to give documents to the client, a statement regarding the file retention policy, and language from the State Bar regarding how the client can file a grievance.

The Contract Introduction: Include the style of the case, cause number, the court and county in which the matter is docketed, and the offense for which they were arrested, or if already charged, the offense for which they were charged. The parties should be identified, in particular the client should be named and identified as the client. If any third party is paying the fee, you should note that your professional and ethical duties attach to the client, and not them. The attorney-client privilege and lawyer’s duty with regard to the client’s confidential information should be specifically addressed.

The Scope and Limits of the Representation: The scope of the representation is the legal work included in the agreement. For example if it is a DWI Class B, the scope may be to disposition of the case, by plea bargain, or trial. If you charge additional fees for a trial, that would be stated in the fee agreement section of your contract. If you include the ALR hearing in your fee, you should expressly

3

state this. However, if you do not intend to challenge or appeal the ALR decision, that limitation should be expressly stated. You would also want to expressly state other limitations, such as the fee not including a motion for new trial or appeal following conviction.

Disclaimers: The contract should explain you are unable to guarantee or promise any particular outcome, as too many variables come to play in case dispositions.

Consents: Recognizing that electronic communications (email, cloud services, cellular devices, etc...) are subject to security risks, it is advisable to obtain the client’s consent to use various modes of electronic communication, prior to using it. This can be done by having the client elect on the engagement contract to provide whatever contact information they authorize you to use.

The fee agreement: This is a crucial part of the contract, and must be laid out in clear and precise language. The amount of the fee and whether the fee is flat or hourly should be expressly laid out. The details by which the attorney earns the fee should be clear. There should be explanation of how an accounting is made in the event an unearned portion of the fee needs to be returned to the client, should the attorney withdraw or be terminated prior to the conclusion of the representation. Non-refundable retainers are not permitted. See THE PROF'L

4

ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 611 (2011) (Holding “it is not permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount paid by a client with respect to a matter is a “non-refundable retainer” if that amount includes payment for the lawyer’s services on the matter up to the time of trial.”). Id. The Trial Fee: Statistically, most criminal cases are resolved by plea agreement. The purpose of the trial fee clause of your engagement contract is to explain that if the client does not accept a plea offer, and the case is set for trial, the Client will be required to pay an additional trial fee for trial preparation and the trial. It should be clear when this fee must be paid.

Additional Expenses: If additional expenses, such as investigation, experts witnesses, travel, lodging, copies, postage, etc..., are not covered in your fee, your contract must clearly state this. This portion of the contract should also explain to the client how and when these expenses must be paid for.

CAVEAT: Be careful when including an arbitration clause in your contract. The Ethics Committee has grappled with the issue of forced arbitration clauses in lawyers’ contracts, and have come up with guidelines, that if adhered to, make them viable. THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 586 (2008). The two primary guidelines are as follows: “(1) the client is aware of the significant advantages

5

and disadvantages of arbitration and has sufficient information to permit the client to make an informed decision about whether to agree to the arbitration provision, and (2) the arbitration provision does not limit the lawyer’s liability for malpractice.” Id. Discuss communications: The most often grieved issue between attorneys and clients, involves an allegation that the attorney failed to communicate, return calls, answer questions and keep the client otherwise informed. The best way to avoid this, is to communicate. Time is valuable, so establish workable boundaries upfront. If you return calls at a certain time of the day, let the client know. If you have client hours, where you make yourself available to take calls, let the client know. Under all circumstances, if the client reaches out for information, return the communication promptly.

CLIENT CONFIDENTIALITY: A.

The Pertinent Rules: TDRPC Rule 1.05 and Tex R. Evid. 503

By far the most inviolable of rules of attorney ethics pertain to client confidentiality, and the attorney-client privilege. Both Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, and Texas Rule of Evidence 503 pertains to the Confidentiality of Information. Rule 1.05 defines confidential information to include both "privileged information" and "unprivileged information." And Tex. R. Evid. 503(b)(2) creates a “special” rule in criminal cases whereby anything learned in the course of representation is privileged. The implications of the latter rule places great restriction on what the criminal

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defense attorney can disclose without breaching client confidential information. Importantly, the privilege attaches to clients who employ an attorney, as well as those who merely seek to employ an attorney.

Rule 1.05 provides: (a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.

(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise 7

instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

(9) To secure legal advice about the lawyer's compliance with these Rules.

(10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide. (d) A lawyer also may reveal unprivileged client information.

(1) When impliedly authorized to do so in order to carry out the representation.

(2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.

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(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).

TDRPC 1.05.

Tex. R. Evid. 503: As stated above, Texas Rule of Evidence also addresses the attorney-client privilege, and in Tex. R. Evid. 503(b)(2) establishes a "Special Rule in a Criminal Case," which extends the scope of criminal client's privilege to "any other fact which came to the knowledge of the lawyer or the lawyer's representatives by reason of the attorney-client relationship." The latter essentially incorporates anything the attorney learns or obtains in the course of the representation. In complete form, Tex. R. Evid. 503 provides: (a) Definitions. In this rule: (1) A "client" is a person, public officer, or corporation, association, or other organization or entity--whether public or private--that: (A) is rendered professional legal services by a lawyer; or (B) consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2) A "client's representative" is: (A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or (B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.

(3) A "lawyer" is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.

(4) A "lawyer's representative" is: (A) one employed by the lawyer to assist in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.

(5) A communication is "confidential" if not intended to be disclosed to third persons other than those: 9

(A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication. (b) Rules of Privilege.

(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client: (A) between the client or the client's representative and the client's lawyer or the lawyer's representative; (B) between the client's lawyer and the lawyer's representative; (C) by the client, the client's representative, the client's lawyer, or the lawyer's representative to a lawyer representing another party in a pending action or that lawyer's representative, if the communications concern a matter of common interest in the pending action; (D) between the client's representatives or between the client and the client's representative; or (E) among lawyers and their representatives representing the same client.

(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer's representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. (c) Who May Claim. The privilege may be claimed by: (1) the client; (2) the client's guardian or conservator; (3) a deceased client's personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or not in existence.

The person who was the client's lawyer or the lawyer's representative when the communication was made may claim the privilege on the client's behalf--and is presumed to have authority to do so. (d) Exceptions. This privilege does not apply: (1) Furtherance of Crime or Fraud. If the lawyer's services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

(2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client.

(3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer.

(4) Document Attested By a Lawyer. If the communication is relevant to an 10

issue concerning an attested document to which the lawyer is an attesting witness.

(5) Joint Clients. If the communication: (A) is offered in an action between clients who retained or consulted a lawyer in common; (B) was made by any of the clients to the lawyer; and (C) is relevant to a matter of common interest between the clients.

TEX. R. EVID. Rule 503.

Some of the more common ethical dilemmas relate to the rules of client confidentiality: The Family Dilemma: Does a client’s family have a right to know information related to your representation of their loved one?

To answer this, we need look no further than Rule 1.05: with limited exceptions, a lawyer shall not knowingly reveal confidential information of a client or a former client.

TDRPC 1.05 (e) and (f). As such, you must explain to even the well-meaning family member that because of ethical rules pertaining to the attorney-client privilege, you are unable to communicate with them about the case. It is best to explain that the rule is in place to protect their loved one. I also explain that it protects them as well. The last thing a wellmeaning family member wants is to end up as a witness against their loved one. You cannot stop the client from communicating with their family about the case, but you should adamantly advise against it.

The Non-Client Payor Dilemma: Does a non-client designated payor of the attorney’s fees retain a right to client confidences?

Similar to the family dilemma, the non-client payor of the client’s attorneys fees, has not entitlement to client confidences. The lawyer is precluded from disclosing client 11

confidences to the non-client payor, unless the client consents. Any arrangement to disclose such confidences to the non-client payor as part of that person’s agreement to pay client’s fees, constitutes a conflict of interest for the lawyer.

Rule 1.08: Conflict of Interest: Prohibited Transactions. (e) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.05.

Confidentiality Dilemma: When can or must you reveal confidential client information?

Lawyers have been required to reveal information pursuant to Rule 1.05 (d)(1), to prevent a crime or fraud, if the lawyer’s services were obtained or sought to enable or aid anyone to commit what the client knew or should have known was a crime or fraud. Many scenarios involving the crime fraud exception are intuitive, but Ethics Opinion 473 hits close to home in that it requires the court-appointed attorney of an indigent client to disclose to the court: 1) if “the defendant is not in fact indigent and could pay for retained counsel,” and/or 2) if the defendant is unemployed at the time counsel is appointed and subsequently during 12

the time of the criminal case obtains employment that would enable him to pay for retained counsel. In both scenarios, the committee opined both Rule 3.03 and 1.05 requires these disclosures so “to avoid assisting a criminal or fraudulent act.” THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 473 (1991).

Recently, three significant amendments to the Rules of Professional Responsibility added to disclosure requirements. The first, 1.05(c)(10) (10) requires disclosure “[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.”

Sadly, many of us have had clients whose circumstances, during our

representation, have led them dark places where this concern has been very real. In those instances, the duty to preserve life outweighs the client’s assertion of the privilege.

The second and third amendments work together to allow counsel to seek advice on ethics and how the Rules of Professional Responsibility apply to their cases: The addition of 105(c)(9) requires disclosure “[t]o secure legal advice about the lawyer's compliance with these Rules;” and the newly added 105(c)(23) states “[a] lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's responsibility to comply with these Rules. In most situations, disclosing or using confidential information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure or use is not impliedly authorized, subparagraph (c)(9) allows such disclosure or use because of the importance of a lawyer's compliance with these Rules.” Thus, now counsel is authorized to make necessary

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disclosures to ethics hotlines, and when seeking ethical opinions.

Dilemma: How do we maintain client confidences in the era of the internet and cloud based technology?

Comment No. 8 to Rule 1.01 was amended in 2019 to include a statement that a lawyer’s competence in the practice of law “includes[] the benefits and risks associated with relevant technology.” TX ST RPC RULE 1.01, cmt. 8. Many lawyers protest this rule, because they not technologists. Yet, today there are many CLEs regarding technology know-how specifically for lawyers. There is an abundance of tech-help available if the attorney has resources to hire out. The State Bar website provides some short videos, called “Tech Bytes” designed to assist attorneys in understanding issues related to technology. An important way in which counsel can protect client confidences is to make sure it is adequately encrypted.

The Tech Byte “Encryption Made Easy” explains encryption of client data is the proverbial attorney “get out of jail free card” for loss of client data, because if data is encrypted, it is considered destroyed. Thus, destroyed data cannot be lost.

What about use of email for client confidential information? Lawyers use email all the time, and during the pandemic it took on new importance as it was often a primary communication mode. The Ethics Committee has generally approved email as a mode of communication for confidential information. However, the best practice is to encrypt email.

What about the use of cloud-based services? Lawyers routinely rely on such services in all facets of their work. Common cloud based services include video transcription services, that help transcribe police body-worn camera footage, grammar check software, 14

WestCheck/BriefCheck, etc... The Ethics Committee has stated a lawyer may store or transmit client confidential information to a cloud based system, provided the attorney: carefully examines the software’s security vulnerability and if it has an known security shortcomings; investigates what protections exist within the technology for data security; investigates whether additional steps such as encryption are needed to make the cloud-based system secure; reviews the terms of service carefully for any concerns and is careful not to transfer ownership of the information to the cloud-based system; and the attorney and their staff have training and knowledge how to use the cloud based service properly to protect client confidences. See THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 680 (2019).

The Client File Dilemma: Who does it belong to?

In pertinent part, Rule 1.15 provides that upon termination of the attorney-client relationship an attorney must “...surrender[] papers and property to which the client is entitled...” The file belongs to the client, not the attorney. Therefore, you may not charge the client for his file. The attorney is merely a fiduciary of the client’s file. If the client wants the file, it must be released to them upon request. However, the lawyer may keep a copy of the file for their records, but must do so at their own expense. Some lawyers, when asked for the client file, provide only portions of it, claiming a “work product” privilege of other portions. There is no work product privilege that entitles a lawyer to remove portions of the client file prior to giving it to the client. This matter was addressed by the Ethics Committee

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in Opinion 570, wherein they held: As in all other circumstances, the lawyer is an agent of and in a fiduciary relationship with the client. The Committee recognizes that a lawyer's motivation for withholding his notes from a client may be the result of a temptation to put the lawyer's own interests ahead of those of the client. The Committee believes that allowing a lawyer to unilaterally make a decision to withhold from a client notes relating to the client and created in the course of the representation of the client because the notes may reflect the firm's interests vis-a`-vis the client undermines the duties owed by the lawyer to the client. In addition, withholding such notes from a client denies the client the full benefit of the services the lawyer agreed to provide to the client.

THE PROF'L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 570 (2006).

Client File Dilemma: Is there any material in the client file that you cannot turn over to the Client?

Yes. The Michael Morton Act, Tex. Code Crim. Proc. Art. 39.14(f) prohibits a lawyer from providing copies of discovery obtained from the State. The lawyer may show the discovery to the client, but cannot give them copies. It is advisable to keep all discovery separate from the other information in the client file, so that it can be efficiently removed should the client request their file.

Client File Dilemma: The client’s new lawyer wants your client file. Must you give it to him?

Yes, but there are some caveats. First, the privilege belongs to the client. Therefore, regardless of the new lawyer's good intentions, you should not release the client file to them

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without a signed release, or other form of express consent, from the client. If the other lawyer insists, you are protected for refusing to return it absent the client’s consent. See In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) (attorney can only release the client file with the client’s consent).

Client Confidentiality Dilemmas and Conflicts of Interest: Several ethical dilemmas regarding client confidentiality come up with regard to conflicts of interest.

Dilemma: Can you ethically represent a co-defendant of someone who previously consulted with you, but did not ultimately hire you?

Comment 1 to Rule 1.05 explains "[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed or sought to employ the lawyer." (Emphasis added). The State Bar Ethics Opinion No. 494 dealt with an attorney who signed the wife as a client in a divorce. However, the wife's husband had previously consulted six years earlier with the attorney toward the possibility of retaining him for a divorce from the same wife. The committee found it was a conflict for the attorney to sign the wife as a client because the attorney-client relationship was already established with the husband when the husband sought to employ the attorney for a divorce from the wife years prior. TEX. COMM. ON PROFESSIONAL ETHICS, Opinion 494 (1994). It was of no consequence that the husband's consultation had been six years earlier, or that the attorney could not recall the husband or any communications with him. The most significant factor considered by the 17

committee was that the consultation with the husband, and later with the wife involved the same facts and controversy. This opinion has implications as to whether a conflict of interest exists as to one defendant when one of their co-defendant has been previously represented by defense counsel or previously consulted with defense counsel. See Id. HONESTY AND INTEGRITY: The duty to Report Your Colleagues’ Professional Misconduct Dilemma: As officers of the court, we have a duty to report unethical conduct of fellow lawyers, and of the judiciary. Rule 8.03 pertains to the lawyers duties with regard to honesty and integrity. Lawyers must report fellow lawyers to the State Bar for a known violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. Lawyers must report judges for a known violation of the rules of judicial conduct that raise a substantial question as to the judge’s fitness for office.

There are exceptions to the duty to report: First, there is an exception for reporting a lawyer with substance abuse or mental health issues; these must be reported to Texas Lawyers Assistance Program, and not the disciplinary authority. Additionally, if a lawyer’s knowledge of their peer’s unethical conduct is privileged, it should not be disclosed.

ISSUES RELATED TO LAWYER COMPETENCE Competence: Rules 1.01; 1.02 Rule 1.01. Competent and Diligent Representation

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(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. `(b) In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients. (c) As used in this Rule, “neglect” signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients. ___________________________ Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

One Way to Assess Competence: Effective Assistance of Counsel: The Sixth and Fourteenth Amendments to the United States Constitution and Article

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I, § 10 of the Texas Constitution have been interpreted to require the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court of Criminal Appeals has held an attorney must acquaint himself with both the law and the facts of a case before he can render effective assistance of counsel. See Flores v. State, 576 S.W.2d 632, 634 (Tex.Crim.App.1978).

The Facts: Duty to Investigate In Stearns v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989), the Court of Criminal Appeals recognized that defense counsel has a duty to make an independent investigation of the facts, which includes the duty to "seek out and interview potential witnesses." Id. at 224.

In McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App. 1996, overruled on other grounds), the Court of Criminal Appeals considered the necessity of trial preparation investigation by defense counsel. The Court concluded: “[s]uch a decision not to investigate ‘must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.’” Id. at 501, citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. It is the role of trial counsel to determine whether or not his client has any viable defenses. In so determining, it is wholly insufficient that counsel for the accused merely study discovery provided by the prosecution. Rather, “[c]ounsel is charged with making an independent investigation of the facts of the case[.]” Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980) (overruled on other grounds). In United States v. Cronic, 466 U.S. 648, 656 (1984), the Court stated:

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“The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.”

Id. This is why the right to counsel attaches at all critical stages of a criminal prosecution.

See United States v. Wade, 388 U.S. 218, 221 (1967). In fact, when first recognizing the constitutional implications of a defendant’s right to counsel, the United States Supreme Court focused on the period of pre-trial investigation, stating that “investigation and preparation were vitally important.” Powell v. Alabama, 287 U.S. 45, 57 (1932). See also, Wiggins, 539 U.S. 510, 522 – 23 (2003)(“counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”). When assessing the reasonableness of an attorney’s investigation, a reviewing court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further. Wiggins, 539 U.S. at 527; Ex parte Martinez, 195 S.W.3d at 721.

The Law: Duty to Know To be competent, and attorney must have knowledge of the applicable law and keep current with the law. The latter can be accomplished by reading all the opinions released each week from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Court of Criminal Appeals, and their jurisdiction’s intermediate court of appeals, and where applicable, issues the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Court of Criminal Appeals, 21

and their jurisdiction’s intermediate court of appeals Plea Bargaining Dilemma: The State makes an unreasonable plea offer. Must the attorney convey it to the client?

When a plea offer is made, defense counsel must convey it to the client, regardless of whether the lawyer thinks it is a good offer, or not. Rule 1.03, governing communications provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Comment 1 to Rule 1.03, is particularly instructive in this dilemma. It provides: “a lawyer who receives from opposing counsel either an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Comment 2 to Rule 1.02.”

In Ex parte Wilson, 724 S.W. 2d 72, 74 (Tex. Crim. App. 1987), the Court of Criminal Appeals held counsel was ineffective for not conveying 13-year offer where client went to trial and got life, and later testified he would have take the 13 if he had known about it.

In the last ten years, the United States Supreme Court has addressed a number of plea bargaining cases. In the same session, the United States Supreme Court issued two opinions related to attorney communications about plea bargain offers. The first, Missouri v. Frye, 132 S.Ct. 1399 (2012), involved a charge of was a driving with a revoked license. There were 22

two plea offers made to the defense, both would result in a 90 day jail sentence. Counsel failed to communicate either plea offer to the defendant Frye, within the deadline to accept the plea bargain. Frye took his case to trial, was convicted and sentenced to three years in prison. The Court held counsel provided ineffective assistance of counsel for failing to communicate the plea bargains in a timely manner to Frye.

The other case involving plea bargaining was Lafler v. Cooper, 132 S.Ct. 1376 (2012).

The defendant there was charged with several offenses including assault with intent to commit murder. The Government offered a recommended punishment range of 51-85 months. Initially, facing a much higher range of punishment under the guidelines, the defendant wanted to accept the offer. However, his lawyer convinced him not to accept the plea offer, by telling him the Government could not prove intent to murder. The basis for his advice was the fact the victim was shot below the waist and did not have life-threatening injuries. The defendant was convicted and sentenced to 185-360 months. Counsel was held to be ineffective, for his advice connecting intent to the location of the victim's injuries.

Evidence of intent was not related to whether the defendant was good marksman.

Competence and Technology: A New Dilemma for the Texas Lawyer Rule 1.01 requiring lawyer competence, now includes competence in technology. The Supreme Court of Texas specifically amended Comment 8 to Rule 1.01 regarding “Competent and Diligent Representation”). The amendment’s language is in bold: “...each lawyer should strive to become and remain proficient and competent in the practice of law,

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including the benefits and risks associated with relevant technology.” Now, Texas attorneys are subject to disciplinary action for failing to keep up with technology.

Fortunately, there are many resources available for counsel to learn relevant technology, even on a budget. This comes in the form of “how-to” videos on the State Bar website, and lists of technology vendors, many with discounted pricing for State Bar members, that help with building online client databases and assisting with cyber-security matters.

Technology Dilemma: Can I use a cloud-based system to store client data?

Yes, but be careful. The Professional Ethics Committee for the State Bar addressed this question. A lawyer may store client information on a cloud-based system, provided the lawyer takes the following reasonable precautions: “(1) acquiring a general understanding of how the cloud technology works; (2) reviewing the “terms of service” to which the lawyer submits when using a specific cloud based provider just as the lawyer should do when choosing and supervising other types of service providers; (3) learning what protections already exist within the technology for data security; (4) determining whether additional steps, including but not limited to the encryption of client confidential information, should be taken before submitting that client information to a cloud-based system; (5) remaining alert as to whether a particular cloud based provider is known to be deficient in its data security measures or is or has been unusually vulnerable to “hacking” of stored information; and (6) training for lawyers and staff regarding appropriate protections and considerations. THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS,

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Ethics Opinion 680 (2018).

Similarly, the State Bar has authorized lawyers to send confidential information via email. However, counsel must remain alert to the hazards of interception and hacking, and take necessary measures to prevent them, such as using encryption. THE PROF'L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 648 (2015).

It is good practice to include a Consent to Digital Communications clause in your retainer agreement letters.

These clauses should clearly state the reality that such

communications are not as secure as others, and allow the client the option of providing email, cell phone, or fax numbers. The clause should state if the client provides those communication options, they are authorizing you to communicate via that mode of communication regardless of the risks associated with it.

SOCIAL MEDIA: Remember Rule 1.05, governing confidentiality, includes both privileged information and “unprivileged.” But Tex. R. Evid. 503(b)(2) creates a special rule of privilege in criminal cases whereby “any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship” is confidential and should be disclosed.

Social Media Dilemma: Can you seek advice from other lawyers in a listserve?

Yes, but exclude any identifying information that could link the question to a particular client and only reveal the information necessary to obtain an answer. Frame the

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question in a hypothetical format. Also, be careful how you respond on the listserve. Your answers should be careful not to contain any information that would identify your clients. If your colleagues are asking for an example of a motion, do not share a copy of the motion with your client’s name on it. Redact all identifying information, including name and cause number.

Social Media Dilemma: Can you post about your cases on Facebook or another social media platform?

Information posted on the internet is permanent in that it can never be completely removed from the internet; the information could have been reposted and shared beyond the poster’s knowledge, and many social media applications have the policy of collecting and storing communications as data. Therefore, it is essential to think carefully before posting anything. Remember client confidentiality, and refrain from any posting anything that would disclose client confidential information.

ADVERTISING DILEMMAS: Dilemma: Can a lawyer request a client post a postive review?

It depends. Ethics Opinion No. 685 (2020) explains lawyers, their websites, and their social media sites are subject to lawyer advertising and solicitation rules. Lawyers are not prohibited from seeking positive reviews from former clients. But Ethics Opinion No. 685 is clear a lawyer cannot encourage false or misleading statements. A lawyer must correct or remove any statement in a review that is false or misleading.

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Social Media/Advertising Dilemma: Does a lawyer have an affirmative duty to monitor websites for false, misleading or unfounded statements about them?

Ethics Opinion 685 did not address this issue head-on. But, it is clear a lawyer might have this affirmative duty, if the lawyer controls the media platform.

Social Media/Advertising Dilemma: What if a former client publishes negative, false comments online?

The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the TDRPC.

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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.

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MARCH 2014

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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.

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