Criminal Defense Lawyers Project & Lubbock Criminal Defense Lawyers Association Present
Prairie Pup Nuts & Bolts January 13, 2021 Course Directors Chuck Lanehart & Philip Wischkaemper
Courses sponsored by CDLP are funded by a grant administered by the Texas Court of Criminal Appeals.
©TCDLA 2020. ALL RIGHTS RESERVED.
TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 6808 HILL MEADOW DR., AUSTIN, TEXAS 78736
PRAIRIE PUP NUTS N’ BOLTS CO-SPONSORED WITH LCDLA SEMINAR INFORMATION Date Location Course Director Total CLE Hours
January 13, 2021 Livestream Event Philip Wischkaemper and Chuck Lanehart 7.0
Ethics: 1.0
Wednesday, January 13, 2021 Time
CLE
8:45 am
Daily CLE Hours: 7.0 Topic
Ethics: 1.0 Speaker
Opening Remarks
Philip Wischkaemper and Chuck Lanehart
9:00 am
.75
Things We Said Today: Evidence
Dustin Benham
9:45 am
.75
Please, Please Me: Plea Negotiations
Pat Metze
10:30 am
Break
10:45 am
.75
Let it Be: Search and Seizure Workshop
David Guinn
11:30 am
.75
In My Life: Mitigation
Justin Kiechler and Lindsey Craig
12:15 pm
Lunch Provided
1:00 pm
.75
I Should Have Known Better: Handling the Difficult Client
Jeff Nicholson
1:45 pm
.75
Money (That’s What I Want): LPDO
Judge Kelly Moore
2:30 pm
Break
2:45 pm
.75
Making the Witness Twist and Shout: Cross-Examination
Grant Scheiner
3:30 pm
.75
All I’ve Got to Do: Pretrial Motions
Michael King
4:15 pm
1.0 Ethics
You Can’t Do That: Ethics
Rusty Gunter
5:15 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
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA Table of Contents
Speaker
Topic Wednesday, January 13, 2021
Dustin Benham
Things we said Today: Evidence
Patrick Metze
Please, Please Me: Please Negotiations
David Guinn
Let it Be: Search and Seizure Workshop
Lindsey Craig Justin Kiechler
In My Life: Mitigation
Jeff Nicholson
I Should Have Known Better: Handling a Difficult Client
Judge Kelly Moore Grant Scheiner
Money (That’s What I Want): LPDO Making the Witness Twist and Shout: Cross-Examination
Michael King
All I’ve Got to Do: Pretrial
Rusty Gunter
You Can’t Do That: Ethics
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
Things We Said Today: Evidence Speaker:
Dustin Benham
2905 21st Street Lubbock, TX 79410 214-729-2159 Phone dbenham@benhamlaw.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
FRE v. TRE: Distinctions for New Criminal Practitioners Dustin B. Benham Texas Tech University School of Law
Differences: Sources of Criminal Evidence Law
Differences: Code of Criminal Procedure Chapter 38
A Few Important Provisions from Chapter 38 • Sex-crimes and child-abuse evidence (See Texas Code of Criminal Procedure •
• • • •
(“CCP”) 38.37; cf. FRE 413, 414). Rules governing child testimony and hearsay statements of abuse victims (See CCP 38.071, 38.072). Waiver of spousal privilege in intra-family crimes (See CCP 38.10). Photo and live lineup evidence (See CCP 38.20). Handwriting comparison (See CCP 38.27). “Nature of the relationship” evidence in family-violence cases (See CCP 38.371; but see TRE 404(b)).
Other CCP Nuggets • Exemptions from The Rule (TRE 614) for victims’ family. (See CCP 36.03, 36.06).
• Sentencing evidence (See CCP 37.07).
Differences: Privilege
Differences: Sources of Law
FRE 501
Differences: Sources of Law Federal Law
Texas Rules of Evidence
• Through FRE 501, the federal rules punt on
• The Texas rules enumerate the privileges in
• Congress rejected the Court’s privilege
• Constitutional and statutory privileges also
the question of privileges. proposals.
• Most run-of-the-mill privileges are left to common-law development in the federal courts.
• Constitutional and statutory privileges also exist.
TRE 502-510. exist.
Important Privileges Federal Law
Texas Rules of Evidence
• • • • •
• Attorney-client (TRE 503) • Spouse (communication and testimonial)
Attorney-client Spouse (communication and testimonial) Clergy-penitent Psychotherapist-patient Informer’s identity
(TRE 504) • Clergy-penitent (TRE 505) • Informer’s identity (TRE 508) (limited in criminal cases) • Physician-patient privilege (TRE 509) (limited in criminal cases)
Differences: What’s missing? Federal Law • No generally accepted physicianpatient privilege.
Texas Rules of Evidence • TRE has no mental-health privilege in criminal cases. But see, e.g., CCP 46B.007 (limited privilege in competency setting).
Rape Shield FRE 412 and TRE 412
Differences: Exceptions to Rape Shield TRE 412(b)(2)
FRE 412(b)(1)
Differences: Exceptions to the Rule • TRE has additional exceptions to Rape Shield • Per TRE, victim’s past sexual behavior also admissible if: • It relates to the victim’s motive or bias (TRE 412(b)(2)(C)) (think: sex-related reasons to lie or seek revenge)
• It is admissible under Rule 609 (TRE 412(b)(2)(D)) (think: testifying victim’s sex-related convictions))
Differences: Balancing Test for RS Exceptions • The TRE Rape-Shield exceptions also require the offering party to establish that “the probative value of the evidence outweighs the danger of unfair prejudice.” (TRE 412(b)(3)).
• This balancing test is more stringent than the liberality of Rule 403 (which only excludes evidence if its probative value is substantially outweighed by a danger of unfair prejudice, etc.).
• Bottom line: TRE includes an extra admissibility hurdle if you have evidence that qualifies for a Rape-Shield exception.
Differences: Rape Shield Procedure • Both FRE and TRE require in camera, sealed hearings on admissibility. • But FRE also requires a motion and notice 14-days before trial, served on all parties and the victim.
• TRE has no specific advance notice requirement.
Witness Character for Truthfulness FRE 608 and TRE 608
Differences: Proof by Specific Instance • FRE 608(b) allows cross-examination into specific instances that are probative of witness truthfulness or untruthfulness.
• TRE 608(b) forbids inquiry into, or extrinsic evidence of, specific instances. • Both rules allow inquiry into, and extrinsic evidence of, witness convictions pursuant to Rule 609.
Impeachment by Conviction FRE 609 and TRE 609
Differences: Crimes of Moral Turpitude
TRE 609(a)(1)
Differences: Crimes of Moral Turpitude • FRE admits felonies and crimes involving dishonest act or false statement, assuming other requirements are met.
• TRE admits felonies and crimes involving “moral turpitude,” many of which involve no false statement: • Theft • Prostitution • Some family violence
Differences: Balancing Tests
TRE 609(a)(2)
Differences: Balancing Tests • For all recent convictions (those not subject to 609(b)), TRE prescribes the same balancing test. • TRE does not provide differing protection for the accused if she chooses to testify. • Crimes of moral turpitude are still subject to the TRE balancing test (as opposed to FRE’s mandatory admission of crimes involving dishonest act or false statement).
Differences: Odds and Ends • TRE 609(c)(2) makes convictions inadmissible upon successful completion of probation so long as witness has no qualifying subsequent convictions (no equivalent FRE provision).
• TRE 609(f) requires notice to any adverse party who timely requests it (contrast with the FRE’s notice requirement that is limited to 609(b) (old) convictions).
• TRE 609(e) renders convictions on appeal inadmissible (opposite of FRE).
Impeachment by Prior Inconsistent Statement FRE 613 and TRE 613
Differences: Foundation
TRE 613(a)(1)
Differences: Foundation • FRE 613 rejects the traditional foundation requirements (contents, time/place, to whom the statement was made).
• TRE 613 retains the traditional foundation requirements.
Differences: Extrinsic Evidence
TRE 613(a)(4)
Differences: Extrinsic Evidence • FRE 613 allows extrinsic evidence (a writing, recording, etc.) before a witness unequivocally fails to admit making a statement, so long as a witness has a chance to explain.
• TRE 613 allows extrinsic evidence only after the witness unequivocally fails to admit making the statement.
Differences: Bias or Interest • TRE 613 imposes similar foundation and extrinsic evidence requirements on evidence of bias or interest.
• FRE 613 does not.
Cross-Examination FRE 611 and TRE 611
Differences: Scope of Cross
FRE 611(b)
TRE 611(b)
Differences: Scope of Cross • TRE 611 allows cross into matters not reached on direct, so long as they are relevant.
• FRE 611 confines the scope of cross to the scope of direct + credibility, unless an advocate is granted leave of court to proceed as if on direct.
Hearsay Exceptions FRE and TRE 803 and 804
Differences: Statements Against Interest • TRE locates the statement-against-interest exception in TRE 803(24), rather
than in TRE 804. • The effect of this is that the exception is available regardless of whether the declarant is available/unavailable per 804(a).
• FRE 804 makes exception for statements against interest only if the declarant is unavailable per 804(a).
• TRE 803(24) also allows for statements against “social” interest. FRE 804 does not.
Differences: Dying Declarations • FRE 804(b)(2) allows dying declarations only in criminal homicide and civil cases.
• TRE 804(b)(2) allows dying declarations in all cases.
Differences: Residual Exception • TRE has no residual exception. • FRE does have a residual exception (currently located at FRE 807).
Differences: Forfeiture by Wrongdoing • The federal forfeiture-by-wrongdoing provision is located at FRE 804(b)(6). • The Texas forfeiture-by-wrongdoing provision is not in TRE 804, rather it is located at CCP 38.49.
Thank you! Dustin B. Benham Texas Tech University School of Law dustin.benham@ttu.edu
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
Please, Please Me: Plea Negotiations Speaker:
Pat Metze
3111 18th St. Suite 108 Lubbock, TX 79409 (806) 834-2395 Phone (806) 742-4199 Fax patrick.metze@ttu.edu
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
Let it Be: Search and Seizure Workshop Speaker:
David Guinn
1805 13th St Lubbock, TX 79401-3823 (806) 771-0700 Phone (806) 763-8199 Fax david@hurleyguinn.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Let it be: Search & Seizure workshop Prairie Dog Seminar LCDLA- TCDLA Texas Tech University School of Law Lubbock, Texas January 13th, 2021
David M. Guinn, Jr.
Hurley & Guinn
david@hurleyguinn.com
•“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give police the upper hand. That hydraulic pressure has probably never been greater than it is today.”
Spark of American Revolution •U.S. v. Rabinowicz, 339 U.S. 56, 59 (1950), Frankfurter, J. dissenting. •Became the law---Chimel v. California, 395 U.S. 752 (1969).
BOMBSHELL—Significant Law
•Florida v. Jardines, 569 U.S. 1 (2013) •No longer simply property or privacy expectation, but BOTH. •Kagan concurrence—this is property + privacy.
Just Think*
•How was the evidence obtained by law enforcement? •Was there a warrant OR not ? •State or Federal Court?
Federal Law Analysis
1. Was the 4th Amendment
implicated? 2. Was the 4th Amendment violated? 3. Does the Exclusionary Rule apply?
Texas Analysis
1. Did Law Enforcement officials seize/search? 2. Was the 4th Amendment or some other law violated? 3. C.C.P. Art. 38.23—evidence excluded. No attenuation or U.S. v. LEON “good faith”.
Standing
•Brendlin v. California, 127 S.Ct. 2400 (2007).
•Rawlings v. Kentucky, 448 U.S. 98,100 (1980).
Two General Scenarios
1. Warrant 2. Warrantless *Is a hybrid under “scope� of the warrant
If Warrant, then . . .
•Preferred and presumed valid, •Code requirements, •Timeliness, •Scope-Particularity,
•Constitutional concern = Probable Cause
Quick Note • Tex. Code Crim. Proc. Art. 18.01(B) – 3rd Sentence:
“Except as provided by Article 18.011, the affidavit is public information if executed, and the magistrate’s clerk shall make a copy of the affidavit available for public inspection in the clerk’s office during normal business hours.”
If No Warrant, then . . .
•Presumed invalid & Burden on Gov’t •Run the Exceptions •Reasonable Suspicion and PC •Length of detention
Implication/Trigger
1. Government Action Required 1. But see: ▪ Spring v. State 626 S.W.2d 37, 38 (Tex. Crim. App. 1982). ▪ Dawson v. State, 868 S.W.2d 363, 365 (Tex. App.—Dallas 1993, pet. ref’d).
Standing
•“A reasonable expectation of privacy (subjectively and objectively) in the thing seized or the area to be searched.” •Rawlings v. Kentucky, 448 U.S. 98, 100 (1980).
Two Legal Triggers for Exclusion
1. Exclusionary Rule- Mapp v. Ohio, 367 U.S. 643 (1961). 2. Tex. Code Crim. Proc. Art. 38.23.
Exigent Circumstances
Is only an exception to the requirement that police get a warrant Probable cause to search is always required So, must have probable cause + exigent circumstances to justify the warrantless search.
Exigent Circumstances
Situations usually include factors pointing to some danger to the officers or victims, an increased likelihood of appending a suspect or possible destruction of evidence. Evaluate these 5 factors:
Exigent Circumstances- Factors
1. Degree of urgency involved and AMOUNT OF TIME TO GET A WARRANT 2. Reasonable belief contraband IS about to be removed 3. Possibility of DANGER to police guarding the site
Exigent Circumstances- Factors 4. Information indication that possessors of contraband are aware police are on their trail 5. The ready destructibility of the contraband and knowledge that efforts to dispose of narcotics and to escape are characteristic behavior or persons engaged in drug trafficking McNairy v. State, 835 S.W.3d 101, 102 (Tex. Crim. App. 1991).
Community Caretaking
•Corbin v. State, 85 S.W.3d 272 4 Factor Test
1-nature & level of distress exhibited 2-location of person(s) 3-Alone or accessible to others (than officer) 4-Extent person, w/o help, is dngr to self/others
Automobiles—Big 4
Delaware v. Prouse (foundation) U.S. v. Whren-any objectively rzbl basis will do. Arizona v. Gant-overturns NY v. Belton
U.S. v. Rodriguez, 135 S. Ct. 1609 (2015)
The “Big ‘Un”
•Walking or Driving
Terry v. Ohio, 392 U.S. 1, (1968). Douglas’ dissent. He was right.
Basis of Stop?
1. Safety (speed, signal) or 2. Equipment/registration violation, or
3. Reasonable Suspicion of criminal activity
Actual Offense Required
U.S. v. Rodriguez (2015).
Two missions: 1. Original, 2. The “new” mission
Reasonable Suspicion
•“particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” Ashcroft v. Al-Kidd, 131 S.Ct. 20
RS Factors
Time of day, Location, Other activity, Weather, Training and Experience of Officer Totality of Circumstances
HUNCH
“because something is possible, does not mean that it is likely.� U.S. v. Foster, 752 F.Supp. 2d 1060 (D. Minn .2010)
Police Can Ask
Driver’s License, Registration, Insurance, Ck for outstanding warrants, Travel plans, Explore possible “mitigation” for moving violation
IF
During that investigation, RS develops of another violation, then it expands to include the new investigation.
Time
No longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). Davis v. State, 947 S.W.2d 245
Illinois v. Caballes, 543 U.S. 405
Officer cannot be dilatory in performing the related actions to create more time to the unrelated actions.
KEY
When was info that is basis for continued detention obtained?
McDonald-335 U.S. 451(
).
•The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted.
Most Frequent Fumble
•Whren + Terry + Minnesota v. Dickerson + Consent + oral statements that are unrecorded or unmirandized.
Warrants & C.C.P. Requirements
1. Art. 18.01- .04 2. Wiretaps – Art. 18.20 3. Pen Register – Art. 18.21
Warrants
1. Signed by neutral and detached magistrate 2. Founded on PROBABLE CAUSE 3. Made under oath of affirmation (swear) \
4. PARTICULARLY DESCRIBING the place to be searched and/or the items to be seized.
Timely Executed
•CCP Art. 18.06(a) & 18.07
•State v. Rico, 241 S.W.3d 648 (Tex. App.– Amarillo, 2007). • ISSUED: 8-19-05 at 2:10 p.m. • EXECUTED: 8-24-05 at 9.10 p.m.
•Rule: Search Warrant should have been executed by midnight of the 4th day (8-23-05 at 12 a.m.)The clock had expired.
Probable Cause
•Illinois v. Gates, 462 U.S. 648 (1979). “Totality of the circumstances” test, Replaces but does not abrogate AguilerSpinelli test of layers of credibility and reliability for sources of information.
4 Corners of Affidavit
•Burke v. State, 27 S.W. 3d 651 (Tex. App.—Waco 2000).
Lacking PC
Huddleston v. State, 387 S.W.3d 33 (Tex. App—Texarkana 2012). Duarte v. State, 389 S.W.3d 349 (Tex. Crim. App 2012.
Conclusory Statements
•Lowery v. State, 843 S.W.2d 136 •Barraza v. State, 900 S.W.2d 840
Lying to the judge?
•False Statement in affidavit must be struck then remainder read to see if it still shows PC. •Franks v. Delaware, 438 U.S. 154 (1978).
Bare Bones—NO PC
U.S. v. Fisher, 22 F.3d 574 (5th Cir. 1994) U.S. v. Satterwhite, 980 F. 2d th 317 (5 Cir. 1992).
Warrant Exceptions
1.Incident to Lawful Arrest (lawful + grabbing area) 2. Automobile Exception 3. Exigent Circumstances 4. Stop & Frisk (Terry)
5. Plain View
Consent
•Consent- Two Part Test: 1. Was consent voluntary and 1. Was it an “independent act of free will.”
Factors to determine Voluntariness *Voluntariness of custodial status *Presence of coercive police procedures *Extent and level of defendant’s cooperation
*Defendant’s awareness of right to refuse consent *Defendant’s education and intelligence
*Defendant’s belief that no incriminating evidence will be found
Consent was INDEPENDENT?
1. Temporal proximity of illegal conduct and consent. 2. Presence of intervening circumstances. 3. Purpose and flagrancy of misconduct by police.
Protective Sweep (ONLY if---)
1. Based upon specific and articulable facts that support an objectively reasonable belief THAT a 2 . PERSON in THAT AREA poses a DANGER to a cop or others
Protective Sweep
•Limitation: •Must stay within an appropriate scope and last only as long as necessary to dispel the reasonable suspicion of danger (of presence of another person). •Reasor v. State 12 S.W.3d 813 (Tex. Crim. App. 2001).
4th Amendment Matters
â€˘â€œIt is safe to say that the safeguards of liberty were forged in controversies of people who were not very nice.â€? Not designed to protect the guilty, but the innocent, and force the paternal notion of honest government being more important than any one crime or criminal.
WARRANT EXERCISE State v. Huddleston, 387 S.W.3d 33 (Tex. App.—Texarkana 2012, no pet.).
WARRANT EXERCISE Lowery v. State, 843 S.W.2d 136 (Tex. App.—Dallas 1991, no writ.).
WARRANTLESS EXERCISE Seiffert v. State, 290 S.W.3d 478 (Tex. App.– Amarillo 2009, no pet.).
End of Presentation David M. Guinn, Jr. Hurley & Guinn Lubbock, Texas david@hurleyguinn.com
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
In My Life: Mitigation Speaker:
Lindsey Lanehart-Craig
1217 Avenue K Lubbock, TX 79401-4025 (806) 239-0659 Phone (806) 765-8150 Fax llanhart@yahoo.com
Justin Kiechler
619 Broadway Lubbock, TX 79401-3503 (806) 712-2889 Phone (806) 712-2529 Fax justin@thelubbocklawyer.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
CRAIG TRIAL CONSULTANTS Lindsey Lanehart Craig
Jury Selection
Mitigation
Trial preparation
In My Life: Mitigation Prairie Pup Nuts & Bolts Sponsored by: TCDLA Co-Sponsored by: LCDLA Lubbock, TX January 6, 2021 Presenters: Justin Kiechler & Lindsey Craig HOW DO YOU LESSEN YOUR CLIENT’S PUNISHMENT: • Get to know them o Talk to them – not at them o Ask them questions about their life – ACTIVE LISTENING! o Build rapport with your client – make them feel comfortable so they will open up to you o Focus on the person, not the crime o Want the decider of your case to see a complete person, not a criminal o It’s about explaining how a person came to be where they are and to show how their personal experiences in life contributed to the situation they are in currently ▪ History of Person • Birth o When/Where o Issues o Nationality • Family o Biological Family o Generations o Other Caregivers o Siblings o Relationships o Abuse/CPS o Poverty/Instability • Childhood o Good/Bad Times o Government Assistance o Racism
•
•
• •
• •
•
•
•
• • •
Trauma o Loss of Loved Ones o Witness to Criminal Activity o Injuries Education o All Schools o Degrees/Certificates/Honors o Sports o Special Education/Learning Disabilities Employment o Skills Marriage and Family o Marriages o Divorces o Children/Step-Children o CPS Religion/Spirituality Substance Abuse o List of Substances and Dates o If Using During Incident o Treatment o Family Mental Health o Diagnosis o Treatment o Suicide/Depression o Family Medical History o Current Issues o Medications o Hospitalizations o Seizures/Head Injuries o Family Criminal History o Juvenile o Arrests/Outcomes o Prison o Family Incident Jail o Classes o Bad Acts/SHU Armed Forces o Branch o Rank Attained o Discharge
•
• Charity/Volunteer Work • Life Purpose Attorneys will receive a transcript and story points
CHARACTER WITNESSES: • Find someone…ANYONE! • Helps give you a better understanding of your client – see them through someone else’s eyes o Family o Friends o Employers o Co-Workers o Preachers o Teachers o Neighbors o Probation/Parole Officers o Correction Officers o Counselors o Doctors • Attorneys will receive a transcript WITNESS PREPARATION: • Please prepare your witnesses to take the stand!! RECORDS: • Help substantiate what your client told you o Educational o Medical o Mental Health o Military (branch, dates of service, discharge – also their parents’ records) o Veterans Affairs o Social Security o Criminal (include jail(s), TDCJ – medical, basic classification (in/out dates), disciplinary, housing, etc., parole and/or probation records and chronos) o Attorney o Insurance o Employment ▪ Might be beneficial to pull family members’ records as well • Attorneys will receive all records as well as notes from the records HOW TO OBTAIN RECORDS: • From client or family members • Online (civil/criminal) • HIPAA Release • Ex Parte Motion and Order • Open Records Request
•
Subpoena
MENTAL HEALTH/MEDICAL EXPERTS: • Need to touch on the topic of mental health or undiagnosed mental health issues and medical issues so you know what experts to hire, if any • Provide to your expert: o Mitigation report o Records that you’ve gathered o Basic discovery • Your expert’s report can also help support your mitigation arguments and themes and help better understand your client, their frame of mind, their behavior, and their level of functioning Exhibits: 1. Federal PSR Questionnaire 2. Adverse Childhood Experience Questionnaire 3. Covenant Hospital Release 4. Department of Veterans Affairs Release 5. FERPA Release 6. HIPAA – Medical Release 7. General Release 8. SF180 Military Release 9. Social Security Administration Release 10. StarCare Release
Tell me about your life…
Get to know your client/case • Pre-Sentence Report Questionnaire
• Who/what/where/when/why/how – Discover the story
• Re-enactments - Discover the story – Can learn positives and negatives
Mitigation Evidence - Visual Poem
Stages to Present Mitigation
PreFiling
Grand Jury
Bond Hearing
PostFiling
Trial
Pre-Indictment/Information • Cooperating with Law Enforcement Investigation • DA’s Office – who to contact
• Non-Prosecution Affidavits • Show your cards
Bond Hearing - Bond Negotiations • Character witnesses
• Client taking the stand • Non-hearing negotiations
Grand Jury • Client testify or not
• Packets – Guilt/Innocence arguments
– Mitigation and Character references
GJ Packet Example Statements • “I was retained by [__] to assist in presenting her story during the grand jury proceedings. After you review her story, we would ask that [__]’s be No Billed. • …his written statement states he lost his leverage when he was bent over. See Exhibit 1.
Post-Filing • Negotiations – Show your cards or don’t – Know your DAs
Trial • Guilt/Innocence • Sentencing
Thank You! Lindsey Craig Craig Trial Consultants lindsey.lanehart.craig@gmail.com 806.239.0659
Justin Kiechler The Kiechler Law Firm justin@thelubbocklawyer.com 817.808.0417
UNITED STATES DISTRICT COURT PROBATION AND PRETRIAL SERVICES NORTHERN DISTRICT OF TEXAS
Worksheet for Presentence Report and PACTSECM PACTS No.:
Interview Date:
Facesheet Data Court Name
Alternate Name (True Name)
Docket No.:
District:
Judge/Magistrate:
Sentence Date:
USPO:
Arrest Date:
Assistant U. S. Attorney (Name, Address, Telephone)
Defense Counsel (Name, Address, Telephone)
Personal Data Social Security No.:
USM No.:
FBI No.:
Register No.:
Driver License No.:
Mailing Address Information From Date: Street/PO Box: City:
Room/Apt: State:
Zip:
County:
Residence Address Information From Date: Street/PO Box: City:
Room/Apt: State:
Zip:
County:
Occupants Lives With:
Name on Lease/Mortgage:
Name on Utilities:
Monthly Payment:
Occupants: Number of Dependents: Hazards: Directions:
Phone Phone:
Fax/Cell:
Beeper:
E-mail:
ProForm1 (Revised 11/4/14)
Page of
Demographics Sex:
Race:
Hispanic:
Height:
Weight:
Date of Birth:
Age:
Eye Color:
Hair Color:
Place of Birth:
Country of Birth:
Citizen:
Immigration Status:
Describe offender immigration status listing entrance dates, previous deportation dates, change of status, who offender entered with, when offender entered US, etc.
Alternate ID Names DBA:
Maiden Name:
AKA/Aliases:
Alternate ID Numbers FBI No.:
USM No.:
Alias SSN:
DOB:
ICE No.:
DPS ID No.: DL Nos: State Inmate No.:
DPS/SID No.:
Scars: Tattoos:
Offense Data (Presentence Report Part A) Charges and Convictions
Release Status
Date Information/Indictment Filed:
Check the Appropriate Box(es): In federal custody since
Date of Conviction:
In non-federal custody since
Count No(s):
In federal custody since
Conviction by (Select One):
Unsecured personal recognizance
Released on:
Guilty Plea/Plea of Nolo Contendere
$
personal recognizance bond since
Court Trial Verdict
$
cash security since
Jury Trial Verdict
$
corporate security since
$
property bond since
Pretrial services supervision
ProForm1 (Revised 11/4/14)
Page of
Counts of Conviction Count Nos. Offense and Statues
Offense Classification
Minimum/Maximum Statutory Penalty
Detainers
No Detainers
Agency or Court
Type of Detainer
Case Number
Codefendants
No Codefendants
Codefendant(s) Name(s):
Related Cases (Co-offenders)
No Related Cases
Docket No.
Defendant(s) Name(s)
Plea Agreement Select One:
Notes:
Written
Accepted
Oral
Deferred
No Agreement
Binding
Substantial Assistance Motion:
No
Yes
Offense Conduct
No Loss Victim's Name
Financial Loss
Victim's Address
Victim's Phone
$ $ $ Loss to all Victims:
$
Describe any social, psychological, or medical impact upon the victim of the offense behavior.
ProForm1 (Revised 11/4/14)
Page of
Acceptance of Responsibility Defendant's statement regarding offense:
None
Date of Arrest, Prosecution, Referral, or Charge/ Detention Conviction
No Pending Charges
Charge(s)
ProForm1 (Revised 11/4/14)
Defendant's Criminal History (Presentence Report Part B) Court City/County/ State Action No.
Date Sentenced or Case Disposed Sentence
Defendant Represented By or Waived Counsel (Y) or (N)
Pending Charges and Supervision Status Court
Docket/Action No.
Next Appearance Date
Page of
The defendant is not currently under supervision (diversion, probation, supervised release, or parole supervision). The defendant is currently under criminal justice sentence. Type of Supervision: Diversion
Probation
Supervised Release
Parole
Escape Status
In Custody
Jurisdiction(s): Supervising Officer's Name and Telephone Number:
Offender Characteristics (Presentence Report Part C) Defendant Residential History: (List every town or city where the defendant has lived.)
Parents and Siblings List the defendant's biological parents. If defendant was reared by persons other than his natural parents, add the surrogate parent's names immediately below the space allocated to Father and Mother. After the parents, list all siblings, living or dead. Name
Relationship
Age
Address/Telephone Number
Occupation
Father Current: Maiden:
Mother
Notes regarding family history; identify any significant problem:
ProForm1 (Revised 11/4/14)
Page of
The defendant is presently single and has no marital history.
Martial Status
Employment status of current spouse.
The defendant has never had any children.
Child's Name
Children Name of Other Parent of the Child
Age
Custody/ Support
Child's Address and Telephone Number (If different from defendant)
Note health problems, criminal history, substance abuse, or any other significant information about children.
ProForm1 (Revised 11/4/14)
Page of
The defendant is healthy and has no history of health problems.
Physical Health
List the date(s) and nature(s) of any serious or chronic illnesses and medical conditions.
List all current prescriptions.
Provide the name, address, and telephone number of the defendant’s physician.
Mental and Emotional Health The defendant has no history of mental or emotional problems, and no history of treatment for such problems.
Do you have any of the following: Hallucinations
Psychosis
Depression
Bipolar-polar
Obsessive-compulsive
Gambling
Schizophrenia
Anxiety
Anti-social
Panic attacks
Suicide thoughts
Suicide attempts
Anger control
Personality disorder
Sexual abuse
Physical abuse
Eating disorder
Other
Give details for anything indicated above:
Did you seek treatment for any of the above?
Yes
No
If yes, list the name and address of the doctor/counselor providing treatment. Describe the treatment duration and approximate date of treatment.
If no, why did you not seek treatment?
ProForm1 (Revised 11/4/14)
Page of
Select all applicable symptoms that have affected you at home and/or work in the past 12 months: Home: Increased irritability
Increased marital stress
Change in appetite/weight
Change in sleep patterns
Increased anger
Inability to concentrate, remember things or make decisions
Work: Increased absenteeism or tardiness
Increased stress
Change in job performance
Increased anxiety
Change in relationships with coworkers
Increased anger
Inability to concentrate, remember things or make decisions List any prescribed, over-the-counter or herbal medications and dosages you are presently taking to treat these symptoms:
If you are taking psychotropic medication, list the name of the medication and the dosage:
Are you taking the prescribed dosage?
Yes
No
If no, why:
Have you ever been accused of physically harming someone?
Yes
No
If yes, explain.
Have you ever been accused of sexual misconduct?
Yes
No
If yes, explain.
Do you think you need counseling?
Yes
No
If yes, explain.
ProForm1 (Revised 11/4/14)
Page of
Substance Abuse The defendant has no history of alcohol or drug use and no history of treatment for substance abuse.
Which of the following substances has the defendant used? Alcohol
Heroin/Opiates
Marijuana
Barbituates
Cocaine
Hallucinogens
Crack
Inhalants
Amphetamine/Methamphetamine
Other: Which substance does the defendant prefer? Which substance has caused the defendant the most problems? Urine test results: When was the last time you used illegal drugs? Name of substance(s) used: Frequency of use and quantity: How was the drug used? When have you abused alcohol?
Type of alcoholic beverage preferred: Frequency of use and quantity: Has the consumption kept you from going to work? Explain.
Have you ever been arrested for any drug or alcohol related offense? Date of arrest(s): Type of offense(s) and disposition:
Details of the offense:
Were you under the influence of drugs or alcohol at the time you committed the offense? Did you commit this offense to support your drug habit? Have you ever been in a substance abuse program? Name of program(s):
Dates attended and results of treatment:
While in custody and/or while under supervision, would you like to receive substance abuse treatment?
ProForm1 (Revised 11/4/14)
Page of
Substance Abuse Questions for Family Members Has the defendant ever used illegal substances and/or abused alcohol? Have you personally seen the defendant under the influence of drugs and/or alcohol? Has the defendant ever used drugs and/or alcohol in the home? When was the last time the defendant used illegal drugs? Name of substance(s) used: Frequency of use and quantity: How was the drug used? When has the defendant abused alcohol? Type of alcoholic beverage preferred: Frequency of use and quantity: Has the consumption kept the defendant from going to work? Explain.
Was the defendant under the influence of drugs or alcohol at the time he committed the offense? Did the defendant commit this offense to support a drug habit? Has the defendant ever been in a substance abuse program?
Education and Vocational Skills Highest grade completed: Scholastic History Name and Location of School (List most recent school first)
Dates Attended
Does the defendant have any specialized training or skills?
Degree, Diploma, or Certificate Received
Yes
No
Yes
No
If yes, what training or skill(s)?
Does the defendant have any professional license(s)? If yes, what license(s)?
ProForm1 (Revised 11/4/14)
Page of
Military
None
Branch of Service:
Service Number:
Entered
Discharged:
Highest Rank:
Rank at Separation:
Decorations and Awards:
Type of Discharge:
VA Claim Number:
Summarize the defendant’s military service. Describe any courts martial or non-judicial punishments. Describe any foreign or combat service. Describe any special training or skills acquired in the service. Describe previous VA claims.
Employment Defendant's usual occupation: Defendant’s employment status: At the time of the offense, the defendant was (select the appropriate number from the categories below) At present, the defendant is (select the appropriate number from the categories below) 1.
Employed full-time
2.
Employed part-time
3.
Unemployed, looking for work
4.
Unemployed, seasonal worker
5.
Unemployed due to disability
6.
Unemployed, history of extensive unemployment
7.
Incarcerated or confined
8.
Student
9.
Homemaker
10.
Retired
11.
Other (Specify)
Employment History (Describe the defendant's employment history for the last 10 years) Dates
Name and Address of Employer
Job, Monthly Wage, Reason for Leaving
From:
To Present: Phone: From:
To Present:
Summarize any employment history over 10 years old
ProForm1 (Revised 11/4/14)
Page of
Financial Condition/Ability To Pay Refer to Form 48A Defendant has few assets and liabilities Notes
ProForm1 (Revised 11/4/14)
Page of
PATIENT NAME:____________________________________________ Date of Birth:_______________ MEDICAL RECORD NO._______________________ SOCIAL SECURITY NO.____________________ ACCOUNT # ___________________________________ TREATMENT PERIOD FROM_______________________________ TO _________________________ Authorization for Use or Disclosure of Health Information Completion of this document authorizes the disclosure and/or use of health information about you. Failure to provide to designated parties all information requested may invalidate this Authorization and your information may not be disclosed. USE AND DISCLOSURE OF HEALTH INFORMATION COVENANT HEALTH SYSTEM
I hereby authorize:______________________________________________________________________________________ to release to: __________________________________________________________________________________________ _____________________________________________________________________________________________________ (Persons/Organization authorized to receive the information (Address - street, city, state, zip code (as applicable the following information): a. 1 All health information pertaining to my medical history, mental or physical condition and treatment received - OR 1 Only the following records or types of health information (including any dates): _______________________________________________________________________________________________ b. I specifically authorize release of the following information (check as appropriate): 1 Mental health treatment informaiton1 1 HIV test results 1 Alcohol/drug treatment information A separate authorization is required to authorize the disclosure or use of psychotherapy notes. PURPOSE Purpose of requested use or disclosure: 1 patient request; OR 1 other: _____________________________________________________________________________________________________ EXPIRATION 1 YEAR FROM SIGNATURE DATE This Authorization expires [insert date or event]2:______________________________________________________________
MY RIGHTS I may refuse to sign this Authorization. My refusal will not affect my ability to obtain treatment or payment or eligibility for benefits.3 If mental health information covered by the Lanterman-Petris-Short Act is requested to be released to third party by the patient, the physician licensed psychologist, social worker with a master’s degree in social work or marriage and family therapist, who is in charge of the patient must approve the release. If the release is not approved, the reasons therefore should be documented. The patient could most likely legally obtain a copy of the record himself or herself and then provide the records to the third party, however.
1
If authorization is for use or disclosure of protected health information for research, including the creation and maintenance of a research database of repository, the statement “end of research study,” “none”.
2
I may inspect or obtain a copy of any health information that is release pursuant to my signing of this authorization. I may revoke this authorization at any time, but I must do so in writing and submit it to the following address: _____________________________________________________________. My intent to revoke this authorization will take effect upon receipt of my written request, except to the extent that others have acted in reliance upon this authorization. I have a right to receive a copy of this authorization.4
COVENANT HEALTH SYSTEM LUBBOCK, TEXAS
authorization for use or disclosure of health information
7503-55
7503-55*
07/08
Graphic Communications
7503-55*
07/08
Graphic Communications
COVENANT HEALTH SYSTEM LUBBOCK, TEXAS
authorization for use or disclosure of health information Information disclosed pursuant to this authorization could be re-disclosed by the recipient. Some re-disclosures may not be protected by California law, or by the federal confidentiality law referred to as the Health Insurance Portability and Accountability Act (HIPAA). If this box 1 is checked, the Requestor will receive compensation for the use or disclosure of my information.5 SIGNATURE Date:_____________________________________________________
Time:__________________________am/pm
Signature:______________________________________________________________________________________________ (patient/representative/spouse/financially responsible party) If signed by someone other than the patient, state your legal relationship to the patient: _____________________________________________________________________________________________________ Witness:_______________________________________________________________________________________________ If any of the HIPAA recognized exceptions to this statement applies, then this statement must be changed to describe the consequences to the individual of a refusal to sign the authorization when that covered entity can condition treatment, health plan enrollment, or benefit eligibility on the failure to obtain such authorization. A covered entity is permitted to condition treatment, health plan enrollment or benefit eligibility on the provision of an authorization as follows: (i) to conduct research-related treatment, (ii) to obtain information in connection with a health plan’s eligibility or enrollment determinations relating to the individual or for its underwriting or risk rating determinations, or (iii) to create health information to provide to a third party or for disclosure of the health information to such third party. Under no circumstances, however, may an individual be required to authorize the disclosure of psychotherapy notes.
3
Under HIPAA, the individual must be provided with a copy of the authorization when it has been requested by a covered entity for its own uses and disclosures (see 45 C.F.R. Section 164.5078(d)(I), (e)(2)).
4
5
The requestor is to complete this section of the form.
FERPA CONSENT TO RELEASE STUDENT INFORMATION TO: __________________________________________________________________ (Name of University Official and Department that will be releasing the educational records) Please provide information from the educational records of ____________________ [Name of Student requesting the release of educational records] to: _________________________________ [Name(s) of person to whom the educational records will be released, and if appropriate the relationship to the student such as “parents” or “prospective employer” or “attorney”] (Note: this Consent does not cover medical records held solely by Student Health Services or the Counseling Center – contact those offices for consent forms.) The only type of information that is to be released under this consent is: _____ transcript _____ disciplinary records _____ recommendations for employment or admission to other schools _____ all records _____ other (specify) _____________________________________________________ The information is to be released for the following purpose: ____ family communications about university experience ____ employment ____ admission to an educational institution ____ other (specify)______________________________________________________ I understand the information may be released orally or in the form of copies of written records, as preferred by the requester. I have a right to inspect any written records released pursuant to this Consent (except for parents’ financial records and certain letters of recommendation for which the student waived inspection rights). I understand I may revoke this Consent upon providing written notice to [Name of Person listed above as the University Official permitted to release the educational records]. I further understand that until this revocation is made, this consent shall remain in effect and my educational records will continue to be provided to [Name of Person listed above to whom the educational records will be released] for the specific purpose described above.
Name (print)_____________________________
Signature________________________________
Student ID Number________________________
Date_____________________________________
AUTHORIZATION FOR RELEASE OF MEDICAL/PSYCHIATRIC/SUBSTANCE ABUSE - ARREST/CRIMINAL - CORRECTIONAL/PROBATION/PAROLE SCHOOL/ EDUCATIONAL - LITIGATION - EMPLOYMENT/INCOME - RECORDS AND INFORMATION
DIRECTED TO: ___________________________________________________________________________________________________ "I, ______________________ , do hereby Authorize the Release of any form of records, including all MEDICAL___, PSYCHOLOGICAL___, PSYCHIATRIC___, SUBSTANCE ABUSE___ information, including any and all records that may be protected by 42 CFR part 2, (including copies) contained in reports, evaluations, testing, assessments, histories, examinations, notes, prescriptions___ , admission/discharge documents, treatment plans and instructions, limitations or any other form of document relating to the diagnosis and/or treatment of any real or suspected conditions, including, but not limited to medical, psychiatric, psychological, substance abuse, HIV/AIDS and sexually related disorders___, which is under your care, custody or control, pertaining to myself or any other person for whom I may legally consent. I further Authorize any Service Providers, Record Holders, or other persons who have created, assisted in the creation of, or held, the above records or the information contained therein to engage in open communication with my attorney(s) or their representatives as listed below." “I, ______________________, do hereby further Authorize the Release of any form of MENTAL HEALTH/MENTAL RETARDATION RECORDS___ held by any regional or state branch of Texas MHMR, or similar organizations in other states, including reports, evaluations, testing, assessments, histories, examinations, notes, prescriptions, admission/discharge documents, treatment plans and instructions, limitations or any other form of document relating to the diagnosis and/or treatment of any real or suspected conditions, including, but not limited to medical, psychiatric, psychological, substance abuse, HIV/AIDS and sexually related disorder___, which is under your care, custody or control, pertaining to myself or any other person for whom I may legally consent. I further authorize any staff member of MHMR to discuss any aspect of the above with members of my defense team listed below." "I, ______________________, do hereby further Authorize the Release of any form of ARREST or CRIMINAL RECORDS, documents, data, reports, offense information (reports, summaries, records, statements, documents, notes), case file documents and /or reports or any other form of information pertaining to my present and/or past criminal history, adult and juvenile, specifically including any document showing my present and/or past alleged or proven criminal conduct that may come into view as a result of criminal records check performed by any law enforcement agency located in the United States, the State of Texas or any other state in the United States." "I, _____________________, do hereby further Authorize the Release of any form of CORRECTIONAL or PROBATION and/or PAROLE RECORDS or information in the possession of any community, city, county, state or federal penal institution, including juvenile facilities medical facilities, mental health facilities and any court or probation or parole department. It is my intention that this authorization include any and all information contained in my Unit File, Classification File, Travel Cards, Grievance Files, Incident reports, Disciplinary Reports, School Records, Gang Classification Files, or Probation/ Parole Case or Supervision File, Medical Service File, Counseling or other Treatment file." "I, ____________________, do hereby further Authorize the Release of any and all LITIGATION or ATTORNEY files, records, and materials concerning my representation in any and all criminal or civil matters, whether pending or closed. I also expressly waive my Attorney-Client privilege and authorize my former attorney to discuss and give information regarding any aspect of his representation to my attorney or attorney representative listed below. This release covers all materials in the possession of my attorney and/or his agents including, but not limited to: all files, memoranda, records, (including medical, psychiatric, substance abuse, school, employment, criminal, and military records); statements by witnesses or myself; whether given orally, taped or in writing; and notes (including investigative and research notes) and notes of meetings and telephone conversations concerning my representation." "I, ________________________, do hereby further Authorize the Release of any and all INSURANCE INFORMATION, whether health, life, car, or otherwise in nature, including all claims, policies, and payments.” "I, _______________________, do hereby further Authorize the Release of any form of INCOME OR EMPLOYMENT Records, documents, data, reports, evaluation, accident or incident information (reports, summaries, records, statements, documents), employment file documents and/or reports or any other form of information pertaining to my present and/or previous employment history, unemployment, worker's compensation, Social Security and earnings information, Tax records or filings submitted to any State or Federal Internal Revenue Service or tax office." "I, _____________________, do hereby further Authorize the Release of any form of SCHOOL or EDUCATIONAL Records, documents, data, reports, disciplinary information (reports, summaries, records, statements, documents) case file documents, Testing, Assessments, Evaluations and academic transcripts, Conference notes, or any other form of information pertaining to my present, and/or past educational activities." Purpose: These records are being requested in order to assist an Attorney in preparation of a legal matter. Revocation: This request is subject to revocation at any time except to the extent that the program or person that is to make the disclosure has already acted in reliance on it. In any event, this consent will expire 730 days after the date signed below. Such records should be released immediately upon request by and to Attorney(s), __________________, ___; or their representative(s), _________________ and/or _______________ and/or _______________, ___; where such records shall continue to be confidential until and unless I give my written consent for them to be released to any other person. Any responsive records may be released to the previously listed individuals or their designees upon presentation of a copy or a facsimile copy of this release. I understand that once delivered, the confidentiality of the released records cannot be ensured by the releasing party. Additionally, I am aware that I may refuse to sign this release and that any services that I am to be provided are not and cannot be conditioned on my signing of this release. Documents and information obtained by this request may be subject to re-disclosure by the recipient and no longer protected by the HIPAA Privacy Regulations.”
Client Printed Name:
_____________
LAR (if applicable) Printed Name: Client/LAR Signature:
_____________
_____________
Client Date of Birth: Client SSN: Date:
__
_
_________
___
__________
_
__________
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
I Should Have Know Better: Handling the Difficult Client Speaker:
Jeff Nicholson 1114 Texas Ave Lubbock, TX 79401-2713 (806) 762-0645 Phone (806) 762-3092 Fax jeffn@nts-online.net
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
ATTORNEY AT LAW 1114 Texas Avenue
Lubbock, Texas 79401 (806) 762-0645
HANDLING DIFFICULT CLIENTS
IT IS GOING TO HAPPEN TO YOU AT SOME POINT
YOU WILL BE CALLED UPON TO REPRESENT SOMEONE WHO REFUSES TO COOPERATE; TREAT YOU WITH DISRESPECT; OR BOTH
John was the most difficult; Paul was the most cooperative; George was the nicest; Ringo was the drummer.
Keep the Fire and Passion Noble Profession FIRST ISSUES:
Clients are Innocent—But be Realistic Overzealous Prosecutors and Law Enforcement
OUR DUTY—Aid Them in Making Legitimate, Rational Decisions INFORM THEM—Do Not Worry Whether They Like You or Not
Carlos Santana
TEXAS AND OTHER RULE OF PROFESSIONAL RESPONSIBILITY
▪ Allow Withdrawal When There
are Conflicts; The Attorney Deems the Matter Repugnant; Client Persists in Committing Perjury; Etc,…
▪ Client wants You to Call Someone
You Suspect is Going to Lie
▪ Duty to Advise That Person They
may Testify; but Committing Perjury is a Felony in Most Instances
▪ “Despite their insistence; I
DOUG TINKER
have learned—over time– that in most instances my clients have some knowledge of the transaction for which they stand accused…”
▪ Create a Paper File upon
SERIES OF DOCUMENTS / PROTECTS YOU
which You can Rely for Writs, Grievances, and Other Similar Issues ▪ Enables you to Piece the Case Back Together in the Event You Need—Especially Cases which are not Recent Matters
APPOINTED CASES (LPDO); HIRED CASES
USE A CONTRACT THAT FOLLOWS RULES OF ETHICS
▪ PROVIDE TO ALL CLIENTS A]. ISSUES—INTRODUCTION B]. BASIC DUTIES OWED TO CLIENT C]. REMINDS CLIENT OF “THREE CHOICES” D]. SPELLS OUT THE PARAMETERS OF REPRESENTATION E]. WANT TO HEAR/ NEED TO HEAR
Michael Morton
Discovery; Witness; Tampering; Phone Usage
Talking with Families
Going Over Plea Bargain
A]. TEN MINUTES B]. LPDO WILL BE HAPPY TO PAY C]. SAVES TIME AND TROUBLE D]. DOCUMENTS COMMUNICATION
A]. STATE HAS COMMUNICATED OFFER B]. DETAIL EACH ASPECT—OFFER; RANGE; TIMING C]. DISCUSS POSSIBLE ENHANCEMENTS D]. RECOMMENDATION—(DO NOT SUGARCOAT THIS)
E]. REITERATE THAT IT IS THEIR CHOICE F]. SIGNATURES AND WITNESSES ADVISED
RESPONSE TO CLIENT “COMPLAINT” LETTER
Things You Will Hear Or Read…. A]. ALL THE THINGS YOU’RE DOING WRONG B]. “DON’T HAVE MY BEST INTEREST IN MIND…” C]. “MY FAMILY NEEDS ME…” D]. “YOU’RE IN THE FREE WORLD…” E]. “YOU’RE WORKING FOR THE STATE…”
RESPONSE TO LETTER REQUESTING COPIES OF “MOTION OF DISCOVERY” A]. EXPLAIN THE PROCESS IN WRITING B]. “NOT TOO MUCH INFORMATION ABOUT CASE” C]. DISCUSS WITH CLIENT; SEND FOLLOW-UP LETTER, “AS I EXPLAINED TO YOU…”
A]. FORMAL WRITTEN REQUEST FOR OFFER B]. CAN BE SPECIFIC C]. “YOUR” INTERPRETATION OF THE EVIDENCE--NOT ADMISSIBLE AS IT IS HEARSAY (PUBLIC POLICY) D]. BE CAREFUL ON THIS—NOT TOO MUCH INFORMATION POSSIBLE STRATEGY ISSUES
A]. TO THE CLIENT/ REASONS/ ETC.
WITHDRAWAL LETTER TO
CLIENT
B]. BE SPECIFIC AND FORTHRIGHT C]. HAND DELIVER IT IF POSSIBLE
D]. MAKE SURE THEY KNOW WHEN AND WHY
A]. NOT IN HIS OR VICTIMS BEST INTEREST B]. REQUEST GUIDANCE FROM THE COURT C]. REQUEST GUIDANCE FROM THE STATE BAR D]. LIMITED NOW—DUE TO MICHAEL MORTON
A]. PREPARE BASIC WRIT ANSWER ASAP AFTER TRIAL
B]. TWO HOURS (APPX). –LPDO WILL PAY/ SAVE TIME LATER
C]. TABLE OF CONTENTS IN FILE WILL ALSO HELP
BILLY GIBBONS (LEFT)— YOUR PEERS (In My Case; Philip Wischkaemper) JOE MICHAEL “DUSTY” HILL (RIGHT)—YOUR CLIENT FRANK BEARD (MIDDLE)—YOU
CONCLUSION
A]. KEEP THE FIRE AND THE DEDICATION B]. 98% OF YOUR CLIENTS WANT YOUR HELP C]. DO NOT TOLERATE ABUSE/ SET THEM STRAIGHT D]. YOU HAVE NO “MOTION TO CHANGE FACTS…” E]. MOST ADVERSARIES DOING THEIR JOB—IT IS NOT PERSONAL
“WHETHER THEY BELIEVE IT OR NOT—YOU ARE HELPING THEM MAKE DECISIONS THAT ARE IN THEIR BEST INTEREST…
AND THAT IS A GOOD THING…”
JEFF NICHOLSON ATTORNEY AT LAW 1114 TEXAS AVENUE LUBBOCK, TX 79401 (806) 762-0645 (806) 543-0011
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
Money (That’s What I Want): LPDO Speaker:
Judge Kelly Moore 1401 Crickets Ave Lubbock, TX 79401 (806) 749-0007 (806) 749-0009 kmoore@lpdo.org
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
LUBBOCK PRIVATE DEFENDERS OFFICE
Money (That’s What I Want) Prairie Pup Nuts N’ Bolts January 13, 2021 Kelly Moore, Executive Director
Special Needs Program
Client Eligibility
The client must be indigent and have a qualifying mental health diagnosis: •
Major depressive disorder with psychotic features
•
Bipolar disorder with psychotic features
•
Schizophrenia/ schizoaffective
•
Intellectual Developmental Disability (IDD)
Referral And Assignment Mental health screening at LCDC Qualifying diagnosis Referral to LPDO Assignment of Mental Health Panel attorney Assignment of forensic mental health caseworker
Special Needs Program Services
Case Management Community Re-entry Out of Jail Support Aftercare
The LPDO caseworkers carry an average of 70 clients at a time. Some are in jail, some are living in appropriate housing, some are on the streets and some are “in the wind.� While caseworkers work at the direction of the assigned attorney, they prioritize clients who are likely to be released from the county jail into services.
Caseworkers
Partnership with Stakeholders Current relationships with: Local mental health authority-Starcare
Psychologists Service providers
LCDC staff Courts DA Local defense bar
Mental Health Caseworkers Duties Attorney Relations Client Relations Case Management
2011 Private Defender Statute Passed
Effective September 1, 2011 Article 26.047, Code of Criminal Procedure authorized the Managed Assigned Counsel Program.
2012 1 Sep. 2011
Through a grant from TIDC in 2012 Lubbock expanded Special Needs Defender Office to handle all non-capital cases in Lubbock County and LPDO was born.
LPDO Operations At-a-Glance PEOPLE • STAFF (10)
STRUCTURE Entity • 501(C)(3) NON-PROFIT
• INTERNS (2-4) • GOVERNING BOARD (7) • PANEL ATTORNEYS (70)
Oversight • Lubbock County Contract • Lubbock Court Admin. • Oversight Board • Board of Directors
SUPPORT CLE • MONTHLY-MH • SPECIAL MENTORING
• RAPID RESPONSE • INDIVIDUAL • BROWN BAG • 2ND CHAIR ATTORNEY PORTAL
• ACCESSIBLE FORMS
Measuring the Health of an Indigent Defense Program/System
Quality Access
Trust
ACCESS TO COUNSEL
Prompt Appointment and Contact Monitoring of time from appointment to contact
Immediate Assignment
Prompt Notification
•
Hourly rates permit compensation for “Client Relations” and foster regular contact
QUALITY + ACCOUNTABILITY
Client Feedback
•
Formalized complaint process and resolution procedure
Quality + Accountability
Hourly Pay
Monitoring Workloads
Mentoring
Training
Data Driven
TRUST
Enhancing Public Trust & Confidence
Mission commitment and adherence:
Administer and promote quality, ethical, and effective criminal defense and mental health services to indigent adults facing a loss of liberty, thereby protecting the fair administration of justice.
Enhancing Public Trust & Confidence
Good steward of public funds:
Cost-effective Leverage outside resources Deliver quality services
Enhancing Public Trust & Confidence
Technologically Capable and Competent
Open and transparent operations Attorney, staff, and public web portals ACH payments and electronic banking
Money (That’s What I Want)
Hourly Rates for Attorneys •
Mental Health
$100
•
1st Degree Felony
$100
•
Other Felony
$85
•
Misdemeanor A & B
$75
•
Appeals-equivalent to trial rate
Vouchering and Payment
Electronic Vouchering through CMS
ACH enabled
Weekly Payments
Attorney Resources •
In-house Investigator
•
Contract Investigators
•
Contract Experts
•
Westlaw Subscriptions
•
Intern assistance
•
Rapid Response Teams
•
Mentorship
•
CLE
ADDITIONAL RESOURCES
For more information or to apply for panel membership: Please call us at: 806-749-0007
Or visit our website at: www.lpdo.org
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
Making the Witness Twist and Shout: CrossExamination Speaker:
Grant Scheiner 2211 Norfolk St Ste 735 Houston, TX 77098-4062 (713) 783-8998 Phone (866) 798-9854 Fax scheinerlaw@gmail.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Making the Witness Twist & Shout LCDLA Prairie Pup Nuts & Bolts 1.13.21
Grant Scheiner grant@scheinerlaw.com Cell: 713-882-0022
Fear
Cross-Examination 4 Lessons • Get Organized • Ask Q’s • Control W • Speak for W
2 Methods
“Wyoming”
“Control”
Getting Organized Chapter Method – Cross-Examination: Science and Techniques, Larry Pozner and Roger Dodd (2nd Ed.) (LexisNexis); – Advanced CrossExamination Techniques, Pozner & Dodd (DVD & Audio CD). pozneranddodd.com
3–7 Chapters
“The Interrogation”
“The Accident”
Start Strong. Finish Strong.
1 Chapter per Page
Chapter Method – 3 Tips: ✓ Choose Outline or Script
Chapter Method – 3 Tips: ✓ Don’t go chronologically
Chapter Method – 3 Tips: ✓ The Cork
How to Ask Questions Resources • MacCarthy on Cross Examination, Terrence F. MacCarthy (2007) (ABA) - Amazon; • Terry MacCarthy on Cross Exam – Part 1 https://www.youtube.com/wat ch?v=QcOkG9-TpEo
Preview Examples Question: I’m going to ask you some questions about {TOPIC}. Do you understand? Question: OK, let’s move on to something else. On March 12th, you arrived early to pick up the kids?
Chapters
Rules “Questions” ▪Series of short statements ▪Have W agree or disagree ▪One fact per question
Three Key Principles
•Lead! •Lead! •Lead!
Example – Smell of Alcohol Lawyer: You claim you smelled alcohol on {client}’s breath?
Witness: Yes. Lawyer: The smell of alcohol, by itself, doesn’t tell you what type of alcohol was consumed?
Witness: No, sir.
Lawyer: Smell of alcohol doesn’t tell you when it was consumed? Witness: No, sir. Lawyer: Where it was consumed? Witness: No, sir. Lawyer: Whether it was mixed with food? Witness: No, sir.
Lawyer: How much food? Witness: No, sir. Lawyer: What kind of food? Witness: No, sir. Lawyer: It certainly doesn’t tell you what a person’s tolerance is for alcohol? Witness: No.
Lawyer: And it doesnâ&#x20AC;&#x2122;t even tell you whether a person is intoxicated. Witness: No, sir. Not by itself. Lawyer: All it tells you is that the person has had something to drink. Witness: I suppose. <STOP>
Control Evasive Witness
Control Tip #1
â&#x20AC;¢ Body Language
Control Tip #2
â&#x20AC;¢ Eye Contact
Control Tip #4
â&#x20AC;¢
Hand Gestures
Texas Two Step © 1.Repeat Question 2.Give Answer
Evasive Witness: Lawyer: Cigarette smoke can cause bloodshot eyes? Cop: Thatâ&#x20AC;&#x2122;s not why your client had bloodshot eyes.
Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct? Cop: A lot of things can cause bloodshot eyes. Intoxication can cause bloodshot eyes.
Lawyer (repeating with emphasis and nodding head): So your answer is yes. Cigarette smoke can cause bloodshot eyes? Cop: Yes.
Keep Witness on Short Leash • Don’t accept waffling!
“Mirrored questions” for implausible answers.
Example â&#x20AC;&#x201C; mirroring questions: Lawyer: Getting woken up and attacked by a stranger had to be very traumatic? Detective: I guess. Lawyer (mirroring the witnessâ&#x20AC;&#x2122; answer): You guess? Detective: Well, yes. I suppose that would be traumatic.
Witness “Ping Pong” ➢ Short questions ➢ Yes or no answers
Cross – “Wyoming Method”
Principles (B-E-T-R) • Bond • Eye Contact w/jurors • Tell story to jurors • Re-focus on witness when important
“Say what you will, but you’re never prepared for the surprise attack.” – Sarah Dessen
Grant Scheiner Cell: (713) 882-0022 grant@scheinerlaw.com
Direct Examination – Traditional Method • Structure – Background – Date of Incident – Elements
Preparation ➢ Go over testimony – write down ➢ “Discover” story ➢Visit Courtroom ➢Walk-Thru »How to Dress »Eye Contact
Donâ&#x20AC;&#x2122;t Lead!
“Looping Questions”
Direct Examination “Wyoming Method”
Principles • Present Tense • Set scene • 5 senses • “Switching” • Look at jury
Grant Scheiner Office: (713) 783-8998 Cell: (713) 581-4540 grant@scheinerlaw.com Š Scheiner Law Group, P.C. 2021
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
All I’ve Got to Do: Pretrial Motions Speaker:
Michael King
814 Main Street Suite B Lubbock, TX 79401 (806) 478-1322 Phone (806) 478-1320 Fax michael@kingcriminaldefense.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
PRETRIAL MOTIONS LCDLA PRAIRIE PUP NUTS & BOLTS â&#x20AC;&#x201C; 1/13/2021 MICHAEL L. KING KING LAW, P.C. 806-478-1322 MICHAEL@KINGCRIMINALDEFENSE.COM
PRE-PRETRIAL MOTIONS
YOUâ&#x20AC;&#x2122;VE BEEN APPOINTED OR RETAINED, NOW WHAT
Notice of Appearance Request for Compliance with Article 39.14 of the Texas Code of Criminal Procedure
BUT YOUR CLIENT WANTS OUT Texas Code of Criminal Procedure Art. 17.151. Release because of delay
I want to go HOME!!!
LOCAL PRACTICE
WELL, THAT DIDN’T WORK
• Motion to Reduce Bond
• Writ of Habeas Corpus
HEARING ON WRIT Rule of Evidence 104(d)
Your client may testify as to matters related to the reduction and not be subject to cross examination on other issues in the case.
Factors to consider at hearing: 1. Work history 2. Ties to the community 3. Length of residency 4. Prior criminal record 5. Prior compliance with bond restrictions 6. Other outstanding bonds 7. Any other aggravating factors in the case 8. Ability to make bond
MY CLIENT IS HEARING VOICES
SHOW ME THE DISCOVERY
YOU SAID WHAT, TO WHOM
PRETRIAL MOTIONS
TIMELINESS OF MOTIONS
Seven days prior to the hearing. Tex. Code Crim. Proc. Art. 28.01
OTHER I NEED HELP!!! • Immigration opinion letter • Ballistics • Licensing expert
• Forensic interview analysis • SANE Expert • BAC Expert
HOW TO GET IT
BUT I NEED MORE TIME
BUT MY CLIENT WANTS TO GO NOW Factors: 1. Length of delay 2. Reason for delay 3. Assertion of the right 4. Prejudice to the accused
BUT THOSE GUYS VIOLATED MY RIGHTS
RULES OF THE SUPPRESSION HEARING Initial burden on defendant to: 1. Demonstrate a search or seizure occurred, 2. That there was no warrant, and 3. If there was a warrant that it was invalid.
Rules of Evidence do not apply
38.23 1. Evidence heard by the jury must raise an issue of fact, 2. The evidence on that fact must be affirmatively contested, and 3. That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.
OMNIBUS MOTION
MOTION FOR EXPERT VOIR DIRE RULE 702
DONâ&#x20AC;&#x2122;T FORGET TO DESIGNATE YOUR OWN
404(B) The state must give the defense reasonable notice of the stateâ&#x20AC;&#x2122;s intent to offer extraneous offenses or bad acts, but only if the defense makes a timely request for such notice.
609
WHAT ELSE DO YOU WANT? • • • • •
Prior witness statements for cross-examination Exculpatory evidence Statements made by the defendant Leave to make additional motions No waiver of rights
STATEâ&#x20AC;&#x2122;S DEMONSTRATIVE EVIDENCE IN VOIR DIRE
MOTION FOR PROBATION
PUNISHMENT SELECTION
DWI
VGN
HGN
EXCLUDE HGN
SEX ASSAULT
OUTCRY
VICTIM!!!
CYA
REJECTION OF PLEA OFFER
ANGRY CLIENT
BEST OF LUCK
Texas Criminal Defense Lawyers Association
Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA January 13, 2021 Livestream
Topic:
You Can’t Do That: Ethics Speaker:
Rusty Gunter 1213 Avenue K Lubbock, TX 79401-4025 (806) 771-3933 Phone (806) 771-3935 Fax rusty.gunter2@gmail.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
YOU CANâ&#x20AC;&#x2122;T DO THAT Rusty Gunter 1213 Avenue K Lubbock, Texas 79401 (806)771-3933 rusty.gunter2@gmail.com (With assistance from the esteemed Jeff Kearney)
FIND A MENTOR
“THERE’S NO BENEFIT TO BEING RIGHT IF YOU CAN’T MAKE PEOPLE LISTEN TO THE ANSWER.”
ALWAYS, ALWAYS GET A SIGNED CONTRACT
THE CLIENT COMES FIRST
DEALING WITH THE DIFFICULT CLIENT
DO NOT RAISE CLIENT EXPECTATIONS
Conduct a thorough investigation
BE CANDID
MAINTAIN COMMUNICATION WITH CLIENT
MAKE CLIENT AWARE OF ANCILLARY REPERCUSSIONS
Do Not Let the Client Dictate How the Defense is Presented
TAKE RESPONSIBILITY
“
I KNOW WHAT IT IS TO BE YOUNG, BUT YOU DON’T KNOW WHAT IT IS TO BE OLD.
” Learn from those around you.