Battling the Resistance-Brownsville

Seminars spon­sored by CDLP are funded by the Court of Criminal Appeals of Texas.

BATTLING THE RESISTANCE SEMINAR INFORMATION Date November 18, 2020 Location Livestream Event, Brownsville, TX Course Director Bobby Lerma and Sheldon Weisfeld Total CLE Hours 6.0 Ethics: 1.0 6.0 Wednesday, 18, 2020 Ethics:November 1.0

Time

CLE

8:15 am

Daily CLE Hours: 6.0

Topic

Opening Remarks

Bobby Lerma and Sheldon Weisfeld

8:30 am

.75

The More Important the Action, the Greater the Resistance: Cross Examination

Eric Davis

9:15 am

1.0

The Battle Must be Fought Anew Every Day: Pretrial

Dustin Nimz

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Ethics: 1.0

Speaker

The Resistance is Fueled by Fear: Opening Statements

Jessica Canter

Lunch On Your Own 1.0

The Resistance is Self-Sabotage: Mental Health

Joseph Hoelscher

ETHICS 12:30 pm 12:45 pm

Break .75

1:30 pm

Procrastination; the Most Common Resistance and the Easiest to Rationalize: Voir Dire

David Ryan

Break

1:45 pm

.75

Controlling the Perceptions: Experts

Nicole Deborde Hochglaube

2:30 pm

1.0

When the Finish Line is in Sight: Closing Arguments

Joseph Esparza

3:30 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

Battling the Resistance-Brownsville Table of Contents

Speaker

Topic Wednesday, November 18, 2020

Eric Davis Dustin Nimz Jessica Canter Joseph Hoelscher David Ryan Nicole Deborde-Hochglaube Joseph Esparza

The More Important the Action, the Greater the Resistance: Cross Examination The Battle Must be Fought Anew Every Day: Pretrial The Resistance is Fueled by Fear: Opening Statements The Resistance is Self-Sabotage: Mental Health Procrastination; the Most Common Resistance and the Easiest to Rationalize: Voir Dire Controlling the Perceptions: Experts When the Finish Line is in Sight: Closing Arguments

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

Texas Criminal Defense Lawyers Association

Battling the Resistance-Brownsville November 18, 2020 Livestream

Topic: The Resistance is Fueled by Fear: Opening Statements Speaker:

Jessica Canter

1000 W Court St Box 3503 Seguin, TX 78155 jcanter@trla.org (361) 450-6730

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

The Resistance is Fueled by Fear

Opening Statements

Jessica Canter Texas RioGrande Legal Aid Lavaca County Public Defender jcanter@trla.org

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Writing the Story 1. Opening Statement is a Story People like stories. Since prehistoric times stories have been told. They used to be little more than paintings on cave walls, but eventually storytelling progressed and grew. The Ancient Greeks developed oral storytelling and writing, such as the Epic Poems. Shakespeare pulled people in with dramatic tales of love and fairy tales emerged to teach children lessons. Humans have always connected through storytelling and it is important to remember that your opening is just that: a story. Only it is not just any story, it’s your client’s story and you need to make sure to tell it.

2. Theme and Theory One way to begin developing and drafting your opening is to have your theme and theory of the case at the ready. As a reminder, a theme is a controlling idea or core insight of a story. It “provides a unique and unstated quality that sparks in the audience a sense that the story will develop in a certain way.” 1 A theme announces itself over and over although is not often made explicit. A theory revolves around the facts and law of your case. It’s always present and always explicit. 2 Storytelling for Lawyers uses the OJ Simpson trial as an example of the difference between theme and theory. Boiled down, the theme of the OJ story was centered around justice and

1 2

Peter N. Meyer, Storytelling for Lawyers 16 (2014).

Id. at 17

2

injustice (betrayal and tyranny), while the theory was focused on a botched investigation and planted evidence. 3 While you begin to draft your client’s story to tell the jury, you must remember to make your case theory clear. The jury should understand your case theory at the beginning of your opening or else they will not understand how the evidence fits into your theory as you continue.

Remember to use facts that support your theory of the case, but do not promise evidence or testimony you may not put on.

3. Organization Although an opening is a story, you want to make sure it is well-organized and easy to follow. Basic organizational structure should include: 1) the hook, which grabs the jury’s attention and related to theory or theme of the case, 2) facts of the case that set forth your case theory, 3), discussion of the facts, 4) discussion of the problems with the evidence the prosecution will rely on, and 5) a strong conclusion.

4. Structure Typically, stories are told in chronological order because that is how events happen in real life. However, this is not the most persuasive way to tell a story. Opening is our chance to catch the jury’s attention and by restructuring your client’s story, you not only capture the jury’s attention, but keep it.

There are different ways to structure a story. For example, you can start with an anachrony: a flashback or a flash forward. Or you can organize your story in a parallel structure, which is

3

Id. at 18

3

moving between events occurring simultaneously. No matter how you structure your story, however, you must choose the beginning of your story carefully; your choice implicitly signals the ending.

Start strong because people tend to remember the first and last things they hear. Do not start with the generic “ladies and gentlemen of the jury” or “may it please the Court”. These words will have the juror’s eyes glazing over. Your hook should catch the jury’s attention and conveys the theory or theme of your case. You can use a quote from a witness you know will come out at trial or begin by telling the jury your client is innocent. Perhaps there is a quote or a lyric that best fits your theme and theory that would be a good opener. Whatever you decide, make sure it is strong and make sure it connects with the theory and theme of your case.

5. Language Drop the lawyer talk. Legalese will put a wall between you and the jury, ruining not only your connection with them, but the story, too. Drop the officer language, too. Our clients do not “exit the vehicle” they “get out of their car.” Talk like a regular person; connect. And when you speak, use some passion. If you do not believe in the story you are telling, the jury will not either.

Be descriptive and use adjectives. Describe the car your client got out of (it was a two door, gray, Honda Civic with chipped paint on the hood). By using adjectives, you can paint your case with words and fill in blanks that jurors would otherwise fill in themselves, which helps ensure that the jury has the same picture in their head as you do and that the story is the one you want to tell.

4

In Latin, the phrase “omne trium perfectum” translates to “everything that comes in threes is perfect, or, every set of three is complete.” There is something to be said about using the rule of three in a story and studies have shown that information presented in groups of threes is understood better. Triads can help a jury retain information, so if your theme or theory allows, throw a triple into your opening or repeat a fact or concept that you want the jury to focus on during the trial three times.

6. Style Often, we tell a story using past tense, but consider using present tense, active voice. For example: “Tim punched Paul” verses “Tim punches Paul”. Changing the tense can help bring your story to life and make the jury feel as though they are active participants.

Consider changing perspective, the point of view, of the narration. We are conditioned to tell a story chronologically and in the third person. Telling the story in first person can be a powerful tool. It allows you to introduce additional evidence and personal information that might otherwise appear extraneous and the jury is encouraged to develop a closer personal relationship with the character whose point of view you are speaking from, encouraging them to create feelings for and empathy with said character. This can be useful when said character may otherwise appear unsympathetic when his or her actions are viewed from another standpoint (sometimes our client). Peter Meyer lays out several other functions of perspective in his book: it can control the flow of information, suggest outcome, endow the listener with responsibility for determining meanings, and affects the listener’s engagement in the story and the listener’s perception of events.

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7. Good and Bad Facts Make sure you use facts which support and bolster the theory of your case. However, when using good facts, be careful not to promise any evidence or testimony that you may not put on. A jury will remember that you said Joe Blow would testify to Tim’s self-defense claim, and if Joe Blow ends up not testifying a jury may perceive you to be a liar.

Unfortunately, sometimes we have bad facts in our cases, and sometimes these facts need to be addressed in opening. By addressing particularly bad facts, you take some of the wind out of the prosecutor’s sails; the jury won’t see the bad fact as fatal to your theory when it comes out in evidence because you have already spoken on it—it won’t come as a surprise.

8. Be Succinct People tend to have short attention spans, so tell the jury what they need to hear and no more.

Do not waste words, either. Take out excess words that do not help progress your story.

Telling the Story 1. Be Passionate If you do not believe in the story you are telling, the jury will know it. A jury looks to a defense attorney as the one person in the room who really knows whether her client is innocent or guilty. They look for the defense attorney’s opinion, and so if you do not believe in what you are saying, they will not believe it either. Understand that opening is more than the words you speak, that it encompasses the delivery, too, and while most of us are not actors, a little sincerity will go a long way with the jury.

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2. Performance As mentioned, most of us are not actors, but there are little things lawyers can do to enhance their openings. For example, use silence. A dramatic pause can help drive a point home or leave an emotion you want the jury to feel lingering in the air. Silence is also useful if you forget your train of thought or are prone to using ‘um’s and ‘and’s to fill a void. There is nothing wrong with a pause and a breath to collect your thoughts and the silence can be used to your advantage in progressing the story and the emotion behind it.

Use your voice and play with your tone. When you soften your voice, the listener is forced to lean in and focus. When you raise your voice, it can signal something dramatic is about to happen or has happened. Consider the pacing of your words, too. Perhaps you speak a little faster during a more exciting part of the story, and slower when it is extremely serious.

Do not forget about using up space. Try not to pace or wander as it can be very distracting for a jury, but do block out some purposeful movement. If, for example, you have different witnesses you will be speaking on, walk to the left side of the courtroom for one witness when you speak about her (or from her point of view, first person), then to the right side when you are speaking about a second witness. Using your space can contrast characters, events, and points, which helps the jury visually process.

Pay attention to your body language. The jury will notice if you are crossing your arms or your hands are in your pockets just as they will notice if you are clicking a pen, jingling change in your pocket, or are slouched or rigid. Be in control of your body language and use it to enhance your story. Purposeful movements can convey emotion to the listener.

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3. Exhibits and Demonstrative Aids We have all heard it, but it bears repeating: a picture is worth a thousand words, and research has shown that most people are visual learners. So, use a few demonstrative aids to help make your opening more vivid, memorable, and persuasive. These visuals will help engage jurors, which increases their ability to recall facts supporting your theory during deliberations. Draw a diagram on a whiteboard, use a PowerPoint presentation to show a map, or hold up the gun that is later to be admitted into evidence. Remember, however, to keep it simple. Demonstrative aids can be used to help make difficult concepts easier to understand, but they should be used to supplement and support what you are saying and not be distracting.

4. Do Not Read Your Opening Although it may be tempting to read the opening that you have drafted, it is best left behind on the table when you approach the jury. The jury needs to focus on what you are saying, and they need to see that you believe what you are saying, too. It is very difficult to project an emotion while reading. It is also difficult to make eye contact with the jury if your own eyes are glued to the paper in your hand. A memorized opening is a powerful opening. However, while I stress memorizing an opening, I would caution against “winging it�. The best openings will be thought out, written, revised, and practiced until it is the way you want it.

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Texas Criminal Defense Lawyers Association

Battling the Resistance-Brownsville November 18, 2020 Livestream

Topic: The More Important the Action, the Greater the Resistance: Cross Examination Speaker:

Eric J. Davis

1201 Franklin St Rm 13 Houston, TX 77002-1929 (713) 274-6730 eric.davis@pdo.hctx.net

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

CROSS EXAMINATION BY: ERIC J. DAVIS

I. Introduction Cross-examination is perhaps one of the most fundamental components of an accused’s rights at trial. Through cross examination the accused is able to challenge the evidence and assertions against him. Through cross-examination, lies can be exposed and the truth advanced. Effective and meaningful cross-examination can vindicate the innocent. Despite the intrinsic value of this constitutional right to ensure justice, numerous people accused of crimes are denied effective cross examination in their cases – some are denied this tool of justice because of the courts… others because of their advocates.

Cross-examination is one of the most difficult trial skills to master. Few attorneys have the raw talent to conduct an effective, impromptu cross-examination. Most lawyers struggle with cross-examination. But besides talent; there are numerous factors that impact counsel’s conduct of cross-examination including training, experience, preparation, organization and creativity. To an extent, courts have restricted cross-examination in some cases.

It is my hope that through this paper, you will be presented with an effective tool to enable you to conduct an effect cross-examination regardless of your level of skill or expertise. It is also the goal that the experienced practitioner will be presented with a tool to enable him or her to sharpen their skill as a cross-examiner.

II. Cross-examination as a Right Worthy of Protecting The Sixth Amendment’s Confrontation Clause provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court has held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

And in Crawford v. Washington, 541 U.S. 36, 42-52 (U.S. 2004), the Supreme Court expanded an accused’s right to cross examine.

The Supreme Court has observed that the right to confront one’s accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The framers of the Constitution would get this concept from the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses gave testimony in criminal trials. The commonlaw tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Specifically, in Crawford the Supreme Court observed that history supports two inferences about the meaning of the Sixth Amendment: First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.

Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court.

This focus also suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

hearsay rules, but the Framers certainly would not have condoned them.

The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused--in other words, those who "bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Crawford, 541 U.S. at 42-52. Through Crawford, an accused has the right to examine the maker of any testimonial statements against him. The Supreme Court through the most unlikely source, Justice Scalia, affirmed that the Constitution ensures that every testimonial assertion against the accused should be challenged.

Legendary trial lawyer Gerry Spence says that Basic cross-examination is nothing more than a true-or-false test administered to the witness, in the course of which our story, as it concerns that witness, is told, question by question, to the witness.

It makes little difference whether the witness answers yes or no.

Question by question, our story is being told. It’s for the jury to determine whether the witness is telling the truth when he denies the statements contained in our questions. If we took each statement out of our cross-examination and joined them, we would have presented our story for that witness….. Only the deluded or naïve believe that somehow the taking of an oath prevents witnesses, even honest witnesses, from lying where they must….Every witness is sworn to tell the whole truth and nothing but the truth. But few do. If they did there would be no cause for cross-examination. But the human mind does not grasp whole truths. It grasps only those truths that serve it.

Gerry Spence, Win Your Case, at 170, 218-219. Without Cross-examination, the accused is left with his life and liberty being decided by lies, untruths and examination in private by judicial officers. There is great value in meaningful cross examination.

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

III. Restrictions on the Scope of Cross-Examination Courts and the rules of evidence provide some limitation on cross examination. Indiana Rule of Evidence 611 provides, a)

Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1)

make those procedures effective for determining the truth;

(2)

avoid wasting time; and

(3)

protect witnesses from harassment or undue embarrassment.

(b)

Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c)

Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1)

on cross-examination; and

(2)

when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

IV. Conducting Meaningful Cross-Examination A.

Preparation. Effective and meaningful cross-examination starts with thorough and active

preparation. Know your client’s story, the facts and evidence against him. Investigate the facts (people, places and alleged occurrences). Investigate the alleged scene. Analyze the scene against the facts. Investigate people to find out about their backgrounds and their reputations. Investigate their experience and their educational background. Be prepared to challenge the testimony in light of the “big picture.”

Once you have a good working knowledge of the facts, try to anticipate the testimony of every witness prior to trial. Prepare for each witness. Consider what each witness offers that can advance your client’s story. And prepare to blunt the effect of adverse testimony you anticipate will be offered against your client. Do not be afraid of avoiding cross-examining a witness.

Consider writing out every question in advance. But do not be married to your questions because the testimony might vary from what you anticipate it will be. With experience, one can become more flexible and use an outline or use a list of subjects about which to cross examine. Formulate Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

some questions from known sources of information that you can readily access (police reports, prior testimony, medical records, prior statements, etc.). Formulate some questions that fit the theory of your case.

B.

Conducting the Examination. One of the keys to effective cross-examination is to listen.

Listen to the answers to questions asked on direct examination and take good notes. Listen for inconsistencies in the evidence as you know it. Listen for illogical answers and answers that are inconsistent with the state’s theme and state’s witnesses. Listen for inconsistencies with common experiences.

Testify. Use cross-examination to tell the jury your client’s story. This is one of the few times the advocate has to opportunity to challenge the assertions of the witness and to advance the client’s position. Take advantage of the opportunity to talk with the jury. Do not just repeat direct examination, unless you do so to discredit it.

Primarily use leading questions, but do not be afraid to ask non-leading questions when appropriate. Use tools of impeachment - prior statements, prior recorded statements, etc. Use extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or use cross-examination to show bias or motive to demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements, impeach the witness with prior inconsistent statements – video, audio, pre-trial witness interviews, or with statements made to other people. Remember to start and end on a strong note.

C. Types of Cross-

Examinations: The Soft Cross-examination is a type of cross-examination where in the lawyer modifies the style and/or the content of the cross examination to appropriate the emotions of the case.

Instead of being “in your face and aggressive,” the lawyer is aware of the effect of the mode of questioning on the jury. For example, a jury might become upset at a lawyer who aggressively questions a young child. So a lawyer might speak to a child witness gently, as if he were speaking to a child. Additionally, some jurors might see some fact witnesses (like nurses or medical personnel) as simply doing their jobs. They might react adversely to a lawyer who attacked a witness they perceived as merely doing their job. During the soft cross, the lawyer modifies the Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

style of the cross-examination to take into account how a jury might react to the lawyer (seeking to avoid a negative reaction).

The soft cross-examination also involves a modification of the content of the crossexamination. Instead of attacking the witness head on, the lawyer seeks to peel back emotional layers to reveal bias or other elements. For example, in attacking a snitch/cooperating witness a lawyer engaged in a soft cross might focus on the collateral emotional losses that the witness is facing instead of focusing merely on the punishment the witness faces. A typical cross of a snitch might look like this: Lawyer: Mam, you have agreed to testify against my client in this case, right?

Snitch: Yes. Lawyer: You are charged in a conspiracy case, true?

Snitch: Yes. Lawyer: You are facing twenty years in the pen, true?

Snitch: Yes. Lawyer: You are saying whatever you can to avoid doing that time, true?

Snitch: I am telling the truth.

Lawyer: But a different truth wouldn’t get your time off, would it?

The content of the Soft cross might look like: Lawyer: Mam, you are a mother of three, true?

Snitch: True.

Lawyer: You are in jail now?

Snitch: Yes. Lawyer: You aren’t able to see your kids while you are lock up, are you?

Snitch: No. Lawyer: You can’t take them to school?

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Snitch: No. Lawyer: You can’t talk to their teachers to find out what’s going on with them can you?

Snitch: No. Lawyer: You aren’t at home to greet them when they come home from school, are you?

Snitch: No. Lawyer: The longer you are incarcerated, the less you will be able to do this are you?

Snitch: Yes. The soft-cross attempts to pull back emotional layers to develop bias, interest or motive.

Many lawyers who use this method also employ psychodrama to further develop their cross examinations. They urge that psychodrama gives them insight into the emotional layers of the witness by helping them “get into the skin of the witness.”

The Story-Telling Cross-examination is another form of cross-examination. A story-telling cross merely tries to tell the story of the witness, of the case, of a theory or of an object through crossexamination. With the story-telling cross an advocate is trying to communicate with and persuade jurors. During the story-telling cross, the advocate is trying to have a conversation with her neighbor over the fence as she is working in her yard. Or the advocate takes the approach that she is having a conversation in the lobby after church. Speak in plain English. (Talk as if you are talking with everyday people, otherwise known as potential jurors.) Put away lawyer language like “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “Let’s talk about what you did on April 4, 1968, before you left the Lorraine Hotel after Dr. King was shot.”

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Try to use short declarative statements during the story-telling cross-examination. While much of the traditional cross-examination requires control of the witness, it is not necessary to use the “prefixes” and “suffixes” of the leading question format -the prefixes “Is it a fact that . . . ?”

“Isn’t it true that . . . ?” or the suffixes “. . . , correct?” or “. . . , isn’t that true?” or “..., am I correct?”

You can use these leading question techniques, but you can obtain the information without using them. And they have a tendency to break up the story. For example, “You are James Earl Ray.” You do not need to say “Isn’t it a fact that you are James Earl Ray?” or “You’re James Earl Ray, correct?” Just state the fact and have the witness affirm it or deny it. Generally, during the story-telling cross most of the answers to questions should be “Yes.” That is because you are using the cross-examination to tell your story and enhance your credibility. It is also a fast, efficient way to provide the jury with information. It also allows the cross-examiner to tell a story and to state the facts. The only role the witness plays is to affirm the trial lawyer’s statements.

A good way to employ the story-telling cross-examination is to first write the story you want to tell through the witness as a narrative. Simply write out a paragraph (using short, declarative sentences) telling the story you want to tell. For example, Martin Luther King, Jr., was a prominent American leader of the African-American civil rights movement. Dr. King won the Nobel Peace Prize. He was assassinated at the Lorraine Motel in Memphis, Tennessee, on April 4, 1968. He was 39 years old when he was assassinated. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport. Ray was a fugitive from the Missouri State Penitentiary. He was later extradited to the United States, and charged with the crime. On March 10, 1969, Ray entered a plea of guilty. He was sentenced to 99 years in the Tennessee state penitentiary. Ray later made many attempts to withdraw his guilty plea. He was unsuccessful. He died in prison on April 23, 1998.

The question and answer might look like this, Q. Martin Luther King, Jr., was a famous?

A. Yes. Q. He was a leader of the civil rights movement in the 60s?

A. Yes. Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Q. The Civil Rights Movement was a National Movement?

A. Yes. Q. It ended Jim Crow?

A. Yes. Q. It ended the forced separation of people by race in our nation?

A. Yes. Q. Dr. King won the Nobel Peace Prize?

A. Yes. Q. The Nobel peace prize was an international award?

A. Yes. Q. He was one of the youngest winners of the prize ever?

A. Yes. Q. He was assassinated?

A. Yes. Q. He was assassinated at the Lorraine Motel in Memphis, Tennessee?

A. Yes. Q. He was killed on April 4, 1968?

A. Yes. Q. He was only 39 years old when he died?

A. Yes. Q. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport? A. Yes. Q. Ray was a fugitive from the Missouri State Penitentiary?

A. Yes. Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Q. He was later extradited to the United States?

A. Yes. Q. He was charged with killing Dr. King.

A. Yes. Q. On March 10, 1969, Ray pled guilty to killing King.

A. Yes. Q. He was sentenced to 99 years in the Tennessee state penitentiary.

A. Yes. The Traditional Cross-examination generally serves two primary purposes and they manifest themselves in either a Destructive Cross or a Supportive Cross. The goal of a destructive cross is to discredit the testifying witness or another witness. This type of cross is designed to reduce the credibility of the witness or the persuasive value of the opposition’s evidence. The use of impeachment material is a key to destructive cross, as it is the ability to attack and discredit the bases for the witnesses’ statements or opinions. The questioner’s goal is to establish control of the witness. The goal of the supportive cross is to bolster the questioner’s own theory of the case and tell the defense story. It should develop favorable aspects of the case not developed on direct examination or expand on these aspects. This testimony may support your witnesses or help to impeach other witnesses.

Control is the key to the traditional cross examination. The lawyer never asks a question to which he does not know the answer (or what the answer will be). The lawyer always asks leading questions with a suffix or prefix. The lawyer never relinquishes control.

V. Impeachment Raising prior inconsistent statements is the most frequently used impeachment method at trial.

More than any other impeachment method, however, impeaching with prior inconsistent statements requires a precise technique to be effective before a jury. Rule of evidence 613, requires Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

that the witness have an opportunity to admit, deny or explain making the inconsistent statement.

Prior inconsistent statements can be either collateral or non-collateral. If it is non-collateral, and the witness does not admit making it, you must prove it up with extrinsic evidence.

The basic structure of the impeachment technique involves three steps: recommit, build up, and contrast. First, recommit the witness to the fact he asserted on direct, the one you plan to impeach.

Try to do this in a way that does not arouse the witness’ suspicions. Use the witness’ actual answer on direct when you recommit him because he is most likely to agree with his own statements.

(You could also challenge the witness to admit the facts he stated in a prior inconsistent statement and get a denial of them).

Second, build up the importance of the impeaching statement.

Direct the witness to the date,

time, place and circumstances of the prior inconsistent statement, whether oral or written. Show that the statement was made when the witnesses recollection was fresher or under circumstances that the witness would be likely to tell the truth (under oath, closer in time to an event, made to assist in an investigation, etc.).

Third, read the prior inconsistent statement to the witness and ask him to admit having made that.

Use the actual words of the impeaching statement. And project your attitude to signal to the jury what its attitude should be during the impeachment. If your attitude is that the witness was lying, confused, or forgetful; then broadcast it with your tone, facial expressions, cadence, demeanor, etc.1 Besides prior inconsistent statements witness can be impeached many different ways on crossexamination. Witness can be impeached by showing bias, interest and motive; through the use of prior convictions; through the use of prior bad acts; through other witnesses; through contradictory facts; through reputation and opinion testimony.

VI. Observations Consider this blog post by Bobby G. Frederick from the internet blog Trial Theory.2

1 2

See Thomas A. Mauet, Fundamentals of Trial Techniques, p. 242-43. http://trialtheory.com

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

The Boy Who Cried Wolf July 22, 2011 “Nobody believes a liar…even when he is telling the truth!” My son is four years old now, soon to be five. He’s gotten into the habit of coming in while I’m working on the computer and telling me “daddy, dinner’s ready!” After a few times of walking into the kitchen to see dinner still cooking on the stove, I’m thinking I need some independent confirmation before I believe that dinner is ready.

I ask him, “are you telling the truth?” and of course he responds “yes!”

Last night I was reading The Boy Who Cried Wolf to him before bed, and it occurred to me that this story contains a most basic explanation of how to demonstrate the un-truthfulness of a witness’ testimony. Not that this is always the goal of cross-examination, but when a witness is not being truthful about something critical to the case it becomes an important part of the cross-examination.

How do you prove that a witness is lying? In some cases it can be proven by extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or we can show bias or motive – demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements we can impeach the witness with prior inconsistent statements – video, audio, witness interviews pre-trial, or statements they have made to other people.

But if these tools are not available, or in addition to these tools, can we show that the witness is simply someone who lies – even if we are unable to prove the witness is lying about the most important fact, what if we are able to show that the witness is lying about other facts? If the witness has lied about other facts, has given inconsistent statements on other subjects, and can be impeached on other statements that he has made to the jury, why should the jury believe anything that the witness says?

The Old Man’s advice to the young shepherd boy, as he laments the loss of his sheep to the wolf, and wonders why the village-folk did not come to help him, is as valuable a lesson for cross-examination as it is for my son: “Nobody believes a liar…even when he is telling the truth!” If you are not a consistently honest person, how can we know that you are telling the truth?

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Texas Criminal Defense Lawyers Association

Battling the Resistance-Brownsville November 18, 2020 Livestream

Topic: Controlling the Perceptions: Experts Speaker:

Nicole DeBorde-Hochglaube

3515 Fannin St. Houston, TX 77004 Nicole@HoustonCriminalDefense.com (713) 526-6300

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

EXPERT WITNESSES Nicole DeBorde Hochglaube

2020 CDLP Battling the Resistance

What is an Expert?

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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. There is a difference between a testifying expert and a consulting expert. Sometimes it is helpful to hire an expert to help provide an understanding some aspect of the case, but the expert may not be someone who should testify as to a defensive issue either because their information is not relevant or could be potentially damaging. It is not required that consulting experts be disclosed to the prosecution even when a request for notice of experts has been filed. Testifying experts on the other hand must be disclosed in certain circumstances. A testifying expert is just what it sounds like – an expert who will testify.

There are limits to what an expert can opine upon. The proposed area of expertise must have scientific validity. There must be supporting documentation for the proposed area of expertise. It is helpful to know the proposed expert’s writings, prior testimony and any studies they have reviewed or conducted. Experts are not to be used for credibility determinations. 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) and “Diagnosis” of abuse is inappropriate Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d).

Motions for Disclosure of Expert Witnesses

The rules of evidence will provide rules for the disclosure of expert witnesses and the reports they produce. Under Texas Rules of Evidence 702, 703 and 704, both sides are required to disclose the name and addresses of witnesses who are to offer testimony at the trial if the request is made 30 days before trial. Tex. Crim. Proc. Code Ann. § 39.14(b). The disclosure must be made no later than the 20th day before trial. Id. You must be careful who you list as an expert because once the party is listed as a testifying

expert, as opposed to a consulting expert, the opposing party may seek further information from or about him for use at trial. Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). If the defense has not requested notice of expert witnesses, and the prosecution has not, it is not necessary or generally advisable to provide this information to the prosecution. A defense request, however, will trigger the duty to disclose testifying defense experts to the prosecution.

There should also be a Motion for List of State Witnesses filed pursuant to 39.14 Texas Code of Criminal Procedure. Upon request, the state shall provide a list of its witnesses. It is always best to specific a deadline for the production of the State’s witness list. The motion can specify a specific date in which the notice must be given or a certain number of days before trial.

Defense lawyers can and should contact most experts listed by the prosecution to understand in advance of trial what the expert will testify about. The prosecution, however, should not be contacting defense experts without permission. Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct provides: “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 provides: “However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” Further, certain entities profess to be neutral governmental agencies and should not have a “side” to prefer. If their expert refuses to talk with you, this can provide excellent fodder for cross examination, especially on the issue of bias. Bring a witness for the interview with the opposition’s expert and consider recording the meeting.

In preparing to speak to the prosecution’s experts, and to cross examine them at trial, a thorough investigation of the expert and subject matter is required. Ideas on what types of materials to look for include: Lab reports, drafts, notes and worksheets Training Supporting materials Reports CVs and training Personnel files Prior testimony Protocols an manuals Equipment calibration, certification or inspection records Speaking engagements

Keeping Fake Science out of the Courtroom There seems to be a trend by the prosecution in our jurisdiction to provide notices of intent to call expert witnesses describing every witness as an “expert”. Left to their own devices, some of these so‐ called experts are willing to opine that every fact they have reviewed is somehow consistent with sexual assault victimization.

The Texas Rules of Evidence provide guidance on qualifying an expert for testimony. Texas Rule of Evidence 705(b) provides for the voir dire examination of an expert about the underlying facts or data before an expert states any opinions before a jury. The court must permit examination about the underlying facts or data to take place outside the presence of a jury. During this hearing, a “Daubert Challenge” can also be made to challenge the “expert’s” qualifications, skill, experience, knowledge and education pursuant to TRE 702. The ability to challenge an expert is rooted in Daubert. Rule of Evidence 705(c) guides the court concerning the admissibility of an expert’s opinion. If the underlying facts and data which led to the forming of the expert’s opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion. Consider filing a motion in limine so that inadmissible opinions do not leak out in front of a jury. An expert’s opinion will be admissible only if it the expert is qualified, the testimony is reliable and relevant to a fact in issue. State v vela 209 SW3d 128, 130 (Tex.Crim.App. 2006). Qualifications will be based upon the complexity of the field, how conclusive the expert’s opinion is, and whether the proposed area of expertise matches the area of inquiry. Reliability and qualification are separate and distinct issues. Reliability factors address whether the scientific theory is valid, whether the technique applying the theory is valid, and whether the technique properly applied.

The court should function as a gatekeeper to keep bad science out of the courtroom Texas Rules of Evidence 702 and 705 provide the framework for the court to evaluate the proposed testimony. At a hearing outside the presence of the jury, a lawyer aiming to keep such evidence out should employ the line of questioning outlined in the Daubert factors. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1994). Specifically, the factors outlined in Daubert are: whether the theory or technique employed by the expert is generally accepted in the scientific community; whether the theory has been subjected to peer review and publication; whether the theory can be and has been tested; whether the known or potential rate of error is acceptable; and whether research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony. In a Rule 705 hearing, experts should

be asked: about the expert’s qualifications; about the validity of the underlying scientific theory used by the expert; about the technique used by the expert to apply the theory; about how the expert applied the technique; about the legitimacy of the field of expertise; whether the subject matter of the expert’s testimony is within the scope of that field; and whether the expert’s testimony properly utilizes the principles involved in the field.

Consult resources available in scientific communities to develop areas for cross examination. It is possible to confront some of the bolstering that the prosecution frequently engages in by understanding the boundaries that should confine such experts’ testimony. For example, the term "reasonable medical certainty" has no scientific meaning. Its legal meaning is at best ambiguous, at worst misleading. It is not required by the Federal Rules of Evidence, nor any other evidence code. More importantly, the term ("scientific certainty") is problematic for a different reason--misleading the jury and should be excluded under Federal Rule 403 for that reason alone. Paul Gianelli, Scientific Evidence"Reasonable Scientific Certainty": A Phrase in Search of a Meaning, Crim. Just., Spring 2010, at 40, 41. Some examples of places to look for gems like this one include: police agencies’ Use of Force Policies, crime scene reconstruction, independent evaluations of scientific evidence, Strengthening Forensic Science in the United States: A Path Forward https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf, and National Commission on Forensic Sciences (now disbanded – archived information) https://www.nist.gov/interdisciplinarytopics/national-commission-forensic-science.

All of this information should be useful in developing a meaningful cross examination even if the evidence is allowed to come in at trial. Using this information to prepare and knowing how to impeach is critical in neutralizing the prosecutions expert testimony. Knowing these rule will also help protect defense witnesses.

Texas Criminal Defense Lawyers Association

Battling the Resistance-Brownsville November 18, 2020 Livestream

Topic: When the Finish Line is in Sight: Closing Arguments Speaker:

Joseph A. Esparza

1524 N Alamo St San Antonio, TX 78215-1205 josephesparzalaw@gmail.com (210) 354-1919

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

When the Finish Line is in Sight: Closing Argument

JOSEPH A. ESPARZA GROSS & ESPARZA, P.L.L.C. 1524 N. Alamo St. San Antonio, Texas 78215 www.txmilitarylaw.com (210) 354-1919

Battling the Resistance Texas Criminal Defense Lawyer’s Association Brownsville, Texas November 18, 2020

he is represented by only one attorney. See Varela v. State, 561 S.W.2d 186, 192 (Tex. Crim. App. 1978); Pryor v. State, 449 S.W.2d 482, 485 (Tex. Crim. App. 1969).

WHEN THE FINISH LINE IS IN SIGHT: (CLOSING ARGUMENT) THE LAW GENERALLY: I.

The Code of Criminal Procedure

Even if an accused has more than one attorney, “[a]rticle 36.08 ... does not give the accused the right to rebut the closing argument of the State.” See Varela, supra at 192. Texas courts have always rejected contentions that an appellant was denied the opportunity to rebut the State's closing argument. See, e.g., Martinez v.

State, 501 S.W.2d 130, 132 (Tex. Crim.

App. 1973); Rankin v. State, 872 S.W.2d 279, 286 (Tex. App.– Houston [14th Dist.]

1994), rev’d on other grounds, 974 S.W.2d 707 (Tex. Crim. App. 1998).

Article 36.07, Order of Argument, states, “The order of argument may be regulated by the presiding judge, but the State’s counsel shall have the right to make the concluding address to the jury.”

This article (36.07) applies to noncapital and capital cases. See Masterson v.

State, 155 S.W.3d 167, 175 (Tex. Crim.

App. 2005). The trial court has broad discretion regarding order of argument, and the court assumes the legislature meant there to be an implicit right to closing argument since they presented the order in which it is to be done. See Dang v. State, 154 S.W.3d 616, 620 (Tex. Crim.

App. 2005).

Article 36.08, Arguments, states,

Number

Article 36.08 affords a defendant the right to address the jury twice in argument. See Burnett v. State, 959 S.W.2d 652, 660 (Tex. App. – Houston [1st Dist.] 1997, pet. ref'd).

When read together with article 36.07's requirement that the State shall always present the final argument, appellate courts have concluded that article 36.08 requires a trial court to permit a defendant represented by more than one attorney to address the jury at least twice before the State presents its concluding argument. See Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000) (statutes in pari materia must be construed to give effect to both if possible)[Emphasis added].

of

“The court shall never restrict the argument in felony cases to a number of addresses less than two on each side.”

The Court of Criminal Appeals has held that, despite the seemingly mandatory language of this statute, the trial court has discretion about whether to allow a defendant to present two arguments when 1

The Texas Court of Criminal Appeals has long held that there are four proper areas of permissible argument:

Article 36.13, Jury is Judge of Facts, states in part, “Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby.”

(1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement.

Article 36.14, Charge of Court, states in part,

See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.1999). Known originally as the Alejandro factors, they have been followed since the 1970's.

“Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same...” [Remainder omitted, emphasis added]

II.

As the Court of Criminal Appeals has stated, “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...Arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney.” See Alejandro, supra, 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).

Permissible areas of argument

The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney. Borjan v.State, 787 S.W.2d 53, 56 (Tex. Crim.

App. 1990).

In making jury argument, counsel may draw all reasonable inferences from the facts in evidence that are “reasonable, fair, 2

and legitimate.” Melendez v. State, 4 S.W.3d 437 (Tex. App. – Houston [1st Dist.] 1999, no pet.). However, argument stating law contrary to the court's charge is improper. Error in jury argument does not lie in going beyond the court's charge, but in stating law contrary to the same. State v. Renteria, 977 S.W.2d 606 (Tex. Crim.

App. 1998).

part to call certain witnesses. Bible v.

State, 162 S.W.3d 234 (Tex. Crim. App. 2005)(failure to produce documents/ sponsoring witnesses in capital punishment phase).

Jury argument made in response to opposing counsel’s argument is proper.

Cole v. State, 194 S.W.3d 538 (Tex. App. — Houston [1st Dist.] 2006, pet. ref’d).

Either side may make arguments that are reasonable deductions from the evidence.

Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008).

Usually any harm resulting from an improper jury argument by the prosecutor is obviated when the objection to the instruction is sustained and the jury instructed to disregard the argument.

DeBolt v. State, 604 S.W.2d 164, 170 (Tex. Crim. App. 1980). An instruction to disregard will generally cure error if a prosecutor mentions facts outside the record. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). An improper argument constitutes reversible error when in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused into the trial proceedings. Borjan, supra, at 56-57.

In summarizing and analyzing the evidence, an attorney has the right to explain evidentiary problems, issues, and circumstances in the case. Pittman v. State, 9 S.W.3d 432 (Tex. App. — Houston [14th Dist.] 1999, no pet.).

Wide latitude is afforded counsel in jury argument as long as the argument is supported by the evidence and good faith.

Jimenez v. State, 240 S.W.3d 384 (Tex. App. — Austin 2007, pet. ref’d).

An attorney can argue matters of common knowledge without express support in the evidence. See Wright v. State, 178 S.W.3d 905 (Tex. App. — Houston [14th Dist.]

2005, pet. ref’d)(prosecutor argued that parents love their children)

Improper-argument error can be non-constitutional error, which is error “that does not affect substantial rights and must be disregarded.” Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000). To determine whether substantial rights were affected, the appellate courts balance the severity of the misconduct/prejudicial effect, any curative measures taken, and

A prosecutor is allowed to accurately restate the law contained in the court’s charge. Taylor v. State, 233 S.W.3d 356 (Tex. Crim. App. 2007). A prosecutor can comment on the failure on the defendant’s 3

the certainty of conviction absent the misconduct. See Martinez, supra, at 692-93; also Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

•

Racially prejudicial remarks or appeals to racial prejudice are harmful and are error. Bryant v.

State, 25 S.W.3d 924 (Tex. App. — Austin 2000, pet. ref’d).

III.

Prohibited Arguments, a.k.a., What should I object to?

•

A.

Can’t Go Outside the Record

•

It is error to argue outside the record where the argument injects new and harmful facts. Baker v.

State, 177 S.W.3d 113 (Tex. App. — Houston [1st Dist.] 2005, no pet.)(prosecutor argued that officer followed standards that were not part of the record).

Incorrect explanations of the law inject new and improper material into trial and are thus improper.

Arnold v. State, 234 S.W.3d 664 (Tex. App. — Houston [14th Dist.]

2007, no pet.).

•

Improper for prosecutor to argue to jury that defendant was responsible for crimes outside the indictment and to convict him on that basis.

Melton v. State, 713 S.W.2d 107 (Tex. Crim. App. 1986).

•

Improper to use hypotheticals or rhetorical questions to imply that other evidence exists which was not admitted into the record and inviting the jury to speculate on what that evidence may be.

See Berryhill v. State, 501 S.W.2d 86 (Tex. Crim. App. 1973) (“Logical deductions from evidence do not permit within the rule logical deductions from non-evidence;” prosecutor argued denials from defendant’s CX and invited jury to speculate as to what else defendant may have done).

B.

Personal Opinion of Attorney

•

Improper for prosecutor to inject personal opinion as to strength of

•

Injecting new facts that imply to the jury that the Defendant has been involved in criminal proceedings as a juvenile and emphasizing that the prosecution can only show in evidence adult convictions is error.

See Parson v. State, 652 S.W.2d 616 (Tex. App. — Dallas 1983, no pet.).

•

Comparing a defendant or his actions to those of a notorious criminal is considered improper injection of facts not in the record and harmful to the defendant.

Gonzalez v. State, 115 S.W.3d 278 (Tex. App. — Corpus Christi 2003, pet. ref’d)(prosecutor compared the defendant to Osama bin Laden).

4

his case. In re JBC, 233 S.W.3d 88 (Tex. App. – Fort Worth 2007, rev. denied)(prosecutor argued that “we have the best darn circumstantial case that I’ve ever seen.” Improper argument cured by instruction in this case though.)

•

•

unless they believe it to be true.

Robilland v. State, 641 S.W.2d 910 (Tex. Crim. App. 1982).

Improper for prosecutor to attach personal belief to credibility of witness, because it bolsters the witness with unsworn testimony.

See Lange v. State, 57 S.W.3d 458 (Tex. App. — Amarillo 2001, pet. ref’d).

Improper for prosecutor to state their opinion as to truthfulness of witness testimony. See Flores v.

State, 778 S.W.2d 526 (Tex. App. — Corpus Christi 1989, no pet.).

•

Improper for prosecutor to convey to jury that they possess specialized knowledge or expertise about contested issue of fact in case. Such a comment poses danger of influencing jury opinion in deciding the issue. See Jackson v. State, 17 S.W.3d 664, 675 (Tex. Crim. App. 2000).

•

Improper for prosecutor to argue they believe the Defendant is guilty. See Villalobos v. State, 568 S.W.2d 134 (Tex. Crim. App. 1978).

•

Improper for prosecutor to argue they don’t introduce evidence 5

•

Improper to argue that law enforcement witnesses are entitled to greater belief than Defendant because Defendant interested in an acquittal. See Caka v. State, 302 S.W.2d 939 (Tex. Crim. App. 1957).

•

Improper for prosecutor to argue that they would not prosecute defendant unless the State’s witnesses were telling the truth and the defendant was guilty. Hickerson v. State, 286 S.W.2d 437 (Tex. Crim. App. 1956).

C.

Community Expectations

•

Improper for prosecutor to argue for a verdict based upon the demands, desires, or expectations of the community. See Harris v.

State, 122 S.W.3d 871 (Tex. App. – Fort Worth 2003, pet. ref’d).

• BUT NOTE: A proper plea for law enforcement may include argument to send a message that violations of the law will be punished.

Wilson v. State, 179 S.W.3d 24 0 ( T e x . Ap p . — Texarkana 2005, no pet.)

•

Improper to argue to jury that the community would want the defendant in prison if the people

knew what he had done. White v.

State, 699 S.W.2d 607, 611 (Tex. App. — Dallas 1985).

D.

Attacking Defense Counsel

•

Improper to make argument that strikes at the defendant over the shoulders of counsel. Dinkins v.

State, 894 S.W.2d 330 (Tex. Crim.

App. 1995).

•

•

•

•

Unsubstantiated accusations of misconduct directed at defense counsel are manifestly improper because they serve to inflame the minds of the jury to the defendant’s prejudice. Harris v. State, 122 S.W.3d 871 (Tex. App. – Fort Worth 2003, pet. ref’d).

Improper to contrast ethical obligations of prosecutors against those of defense counsel in argument. Harris, supra

E.

Failure of Defendant to Testify

•

Improper to argue that the only person that knows the motive did not offer one in the trial. Koller v.

State, 518 S.W.2d 373 (Tex. Crim.

App. 1975).

•

Improper to argue that it has not been contested that the Defendant committed the offense. Angel v.

State, 627 S.W.2d 424 (Tex. Crim.

App. 1982)

•

Improper to argue that there has been no explanation for the offenses (if Defendant only one who could explain). See Myers v.

State, 573 S.W.2d 19 (Tex. Crim.

App. 1978).

*** SOME THOUGHTS ON EFFECTIVE CLOSING ARGUMENT

Personal explicit impugning of defense counsel’s character is improper argument. Mosley v.

State, 983 S.W.2d 249 (Tex. Crim.

App. 1998).

Closing argument is supposed to be a persuasive summation of your case or your thoughts on the State’s case. It is literally your last word with your fellow citizens who hold your client’s fate in their hands. Your closing argument should be logical, easy to follow, and persuasive.

Regardless of your theme, you should emphasize it and drive it home here. Not all attorneys do this and one can always tell when the closing argument is from the hip and not from prepared talking points.

Improper to argue Defense counsel is a mouthpiece for criminals whereas prosecutor is public servant for the people. Dykes v.

State, 325 S.W.2d 135 (Tex. Crim.

App. 1959).

6

Juries can tell when a lawyer is just talking and throwing up words without a structured case — it’s the reason the jurors look confused sometimes. Jurors expect to hear tight, structured closings like they see on TV or in movies. They expect to hear speeches that have passion or perhaps discuss and distill complex concepts into everyday speech. When you don’t give it to them, you begin to confuse and lose the jury. Remember that the jury has been watching and listening to the evidence and they expect you to go over it (even if you’re going to spin it). They want to hear from you and hear why they should vote for your side.

From what I’ve seen, in my experience (and perhaps yours as well), when the case gets towards the finish line, we find ourselves facing arguably 3 sets of jurors: (1) Jurors who are with us (preaching to the choir), (2) Jurors who are against us (Haters gonna hate, the frowners, the ones that won’t meet your eyes), and (3) Jurors who are on the fence (the inquisitive looks, the conflicted ones).

Our job as defense counsel at closing is to keep the ones that are with us, keep the ones currently against us contained, and persuade the ones on the fence that the defense is correct.

If there is damaging evidence, tell them how they should look at it, why it’s not as damaging as it appears. If you have damaging testimony that the jury will be deliberating on, your closing argument needs to neutralize it or explain it away if possible. You always need to provide the members of the jury with a different way of looking at the evidence, i.e., in a way favorable to the defense. You want to empower the jury so that they will view and argue the evidence back in the jury room the way you want them to. Of course, you will argue the court’s charge as well and emphasize all that is helpful to you in that document.

To that end, I submit to you that there are a finite number of classic themes for closing argument that criminal defense lawyers should argue. Rethink your case themes if they sound complex or too long.

Bounce them off lay persons in your life, not just other lawyers. Get honest feedback. If you do this, I promise you these classic case themes will be more successful according to your lay person friends and family (i.e., future jurors). This is because they will be easier to understand and they will feel “familiar.”

Remind them of the presumption of innocence. Don’t cynically assume no one believes in it anymore, these jurors took an oath to follow the law, remind them of the law that helps your case.

These classic themes are good to use because they already make sense to juries and because they mimic what many jurors have seen on TV or in the movies, 7

and thus evoke a familiar feeling that you as the lawyer are doing everything right.

your fault, some cases are just terrible and you have to try them because your client would not see reason and accept any reasonable offer. We’ve all been there.

You frankly don’t have much to work with if you’re going the general denial route, or do you?

Remember, you are trying to persuade the jury at all times. They have to feel good about going your way, so the more familiar you can make your arguments feel, the more they will “ring true.” _________________________________ Theme 1:

All you need is 1 juror to throw a monkey wrench into the State’s case. Find your 1 juror and you can hang that trial or perhaps (if your 1 is persuasive), you can “12 Angry Men” that whole situation and have the one slowly bring the other 11 around. It’s not likely, but as we as defense counsel love to say, “It’s possible.”

The General Denial, a.k.a., “Everything that guy just said is bullshit. Thank you.”

– Vincent LaGuardia Gambini, My Cousin Vinny _________________________________

Taking a cue for Vincent Gambini, your entire case is really a vigorous CX of the State’s case where you poke as many holes into the evidence as possible, maybe using your expert witness to assist you (assuming you have one), and argue, argue, argue. You list what’s missing from the evidence and hammer that, what should be there, but isn’t. Vinny found his evidentiary gold during trial and gutted the prosecution’s case so well, they dropped charges and he never got to give closing argument. Could that happen to you?

Never in a million years. That was a movie. The best you can hope for is a strong closing argument where you take the prosecution case apart in a way that the jury agrees with your views about the case.

This is a basic, “bread and butter” theme that, unless done convincingly, is not very interesting, and people/juries will let you persuade them with this theme only if you have actual flaws to argue about the evidence or the elements, as was the case in “My Cousin Vinny.” But you have to give the jury something to hang their hats on! All defense lawyers start with the GD. If you are not careful, the general denial can be where good arguments go to die. If all you are arguing is general denial, you’re behind the eight ball, as it were.

Because if you’re here, you didn’t find any other classic theme to fit your facts or case suitably. Maybe your case is not a triable one in your professional judgment and you’re looking at a slow guilty plea with a jury to see you go down in flames. It’s not

General Denial closings should have a liberal use of PowerPoint, demonstrative evidence, time lines, etc.

Anything that draws the eye and keeps the 8

focus on the flaws in the evidence. The State can’t argue that your client didn’t testify, but they will argue their evidence, so you have to attack it. It’s your only play.

_________________________________ Theme 2:

Even though general denial is generally a mediocre theme (or a lack of a theme depending on how you look at it), it does have the benefit of being anchored completely to the evidence and, depending on how cross examination went, and how tight the State’s witness testimony was, you can get acquittals with general denial.

a.k.a., Some Other Dude Did It.

S.O.D.D.I.

_________________________________ This is a classic theme as old as time itself. It’s the ultimate law enforcement mistake, blaming the wrong person for something they didn’t do. Jurors love this theme because it could happen to them, their loved ones, their friends or coworkers, or maybe it already has in some lesser capacity. Everyone at one time or another has been blamed for something they didn’t do. This theme resonates.

And if you’re one of those lawyers who doesn’t believe in themes and claims never to use them, that YOU just argue the evidence: Congratulations! You’re using the General Denial theme!!

The police arrested the wrong person, your client is innocent of the charge(s), and the prosecution refuses to see the plain truth: somebody else committed this crime. The only chance your client has for real justice, you argue, is the jury. You tell the jury they have the power to make things right and show the DA’s office what this trial has shown us all: They have the wrong man/woman (and by extension, have wasted everyone’s time and county resources trying to “fit a square peg into a round hole.”)

My law partner and I once won a capital murder trial years ago with only a general denial defense that was peppered with another classic theme variation mentioned later, so I know it’s possible.

Some variations on General Denial are: 1.

2.

3.

4.

5.

The State hasn’t proven their case BRD The State hasn’t proven all the elements of the crime The State’s investigation was shoddy, a “Rush to judgment” Even circumstantial evidence can lie The evidence just isn’t there

The beauty of this theme is also that you don’t have to prove up the “real killer” or catch the actual bad guy. You just have to argue and persuade at least 1 juror that the State has the wrong guy. That is a position that every one serving jury duty 9

can get behind. No one wants to convict the wrong person or an innocent person.

Give a juror the ammunition to argue to others in the jury room that they will do the right thing if they vote Not Guilty and they are not likely to budge from their position.

_________________________________ Theme 3: The Alibi, a.k.a., It couldn’t have been me, Detective, I was somewhere else at the time of the [Insert Crime Here]. __________________________________

It is helpful for this theme that your client testify, but not required. So long as alternate suspects are brought out on CX from the Detective on the case or other witnesses, this defense theme works. The jurors will want and expect to hear how your client was mistakenly arrested and they need possible alternates to consider.

I should confess that I have never had occasion to argue this theme in all my years of practice because anytime I had an alibi defense or possible alibi theme, I made it known to the prosecution ahead of time. It’s always a calculated risk to expose one’s hand ahead of trial, but the more ironclad the alibi, the less I cared because there was no danger I was wrong or that the State could change the outcome of this theme. In the few cases where I had an actual alibi, the State always dismissed the case prior to trial.

This theme has an advantage in that it allows the jurors to wear the White hat and actually fight for your client in the jury room. It’s a win-win if this theme is workable for your case.

Still, this classic theme is shown in movies, TV, mystery novels, it is a great storytelling twist and people like it because it continues the story rather than ends it. If it’s not your client and you as defense counsel can prove it was not, then that means the State has it wrong...and it leads back to S.O.D.D.I. and the jurors can wear the White hat again and fight for your client behind closed doors and feel good about it in the process.

Variations of this theme: 1.

2.

3.

My client was set up/law enforcement mistake This is a case of mistaken ID Wrong place, wrong time

You can argue, and rightfully so, that the State cares so little about actual justice and your client’s constitutional rights, they pursued a prosecution they knew was bogus, because you informed 10

them of the alibi prior to trial and yet, here we find ourselves. In trial. The possible arguments one can make from an Alibi defense theme are numerous and they are all compelling.

because it reminds them of the movies.

This is a primal fear of every citizen, the fear of false accusation and being wrongfully convicted. By its very nature, a false accusation can happen to anyone. Emphasize that, because that is the scariest part of this theme. To a lesser extent, this same fear is in the S.O.D.D.I. theme, but that theme doesn’t have you proving you were somewhere else, etc., just you casting reasonable doubt on the State’s case.

Usually this defense comes from the Accused taking the stand, or family and friends of the Accused, and so can be minimized or viewed with some scrutiny by a jury. Without more to back it up, the State may very well pursue the case against your client and it becomes a triable case dependent on witness credibility.

__________________________________ Theme 4:

But in an age of cell phone location services and a digital existence, that testimony can be strengthened with social media posts, pictures, texts, receipts, even video from businesses or the place frequented with a time stamp showing your client was not at any crime scene but was in fact out on a date, or having lunch, or online and in his home, and therefore couldn’t have been across town committing whatever crime was charged against him. Check your client’s cell phone and pray he left location his services tracking “on” and you have a listing of places the phone has been and his alibi is even stronger.

Yeah, I did it, but it’s not a crime a.k.a., Justification, b*itch! _________________________________ This is where you usually find your legal defenses: self defense, defense of another, duress, necessity, insanity, etc.

Your client testifies and admits to the conduct usually or somehow you get some evidence into the record that supports the jury instruction and argument that there was legal justification for the crime charged.

Again, the overarching theme in an alibi case is that of an innocent person being held to account, only this time the innocent person has some proof they are innocent and the machinery of the State still doesn’t care. That is something that resonates with jurors. They like seeing the defense attorney put on a case like this,

You argue the law allows for your client’s actions and, indeed, has even anticipated your client’s actions precisely because the legislature created this legal justification.

This justification was intended so 11

that these actions would not be criminal and in fact would be allowed to act as a legal shield should the government ever attempt prosecution. Tie this in with another classic theme as needed (general denial, etc.).

just a crook with an alibi. In this classic theme, you have an actual innocent, so you have to make the most of it.

An innocent man/woman taking the stand is a powerful flex of a theme with little downside. If she testifies well, you argue she did so well because she’s innocent, not even the skilled district attorney could rattle her under CX. If she testifies and was shaky on some points, argue the stress of the charge hanging over her head for so long, and testifying, period, something she’s never had to do before, was greater than the jury can imagine, but not so great she was afraid. Your innocent client may not have the prosecutor’s comfort in a courtroom, you will argue, but that’s only because she’s never been accused of a crime before. She’s a lawabiding citizen.

Variations of this theme: 1.

2.

3.

4.

We have the right to live/defend ourselves My client wasn’t looking for a fight He/She was protecting (insert beloved person/place) Dude needed killing (my fav!)

_________________________________ Theme 5: An Innocent Man/Woman Took the Stand and told you the truth. _________________________________

I once won a sexual assault trial when my client took the stand in his own defense, testified effectively (I believed), and the prosecutor tried to use the fact that he took the stand against him, arguing in effect that this trial was about the victim’s suffering and her pain, and not the place for the defendant to defend himself, to take the stand and essentially deny the victim’s truth, blah, blah, blah. The prosecutor even walked to the witness stand and pointed at it and instead of talking about her victim and how brave she had been to come forward (the sort of argument one might expect), she argued that the witness stand was not for liars or those who dodged the truth, it was for evidence so that the jury can see for themselves who is worthy of

If you have a client that presents well, is articulate, and has no criminal record (or a modest one with some honest years between the charged offense and past crimes), and they testified in their own defense, use that! Always argue their testimony and the fact that they took the stand in their own defense when they didn’t have to, when they knew they’d be cross-examined, etc. Never let the jury forget the important fact that they were not afraid to speak up, that they in fact demanded it — as would any innocent person. This theme is similar to alibi, but alibi does not require that your defendant be squeaky clean; he could still be a crook, 12

belief. She cited parts of my client’s testimony she took issue with and argued their likely falsity.

it begs the question...

If this isn’t the place, then where is it? Tell me, where is it? When is a man permitted to defend himself in this day and time, If. Not. Here? [Hand back on the witness stand]

I made no objections, I just waited for my turn and instead of starting my closing where I’d planned, I started instead with some questions. I walked straight to the witness stand, didn’t say a word, and turned to face the jurors and I waited quietly until every juror looked at me. I was angry and I let it show in my face and I asked them:

[ At this point in the argument, I had at least half of the jurors, all men, nodding their heads with me on every question. I hadn’t even talked about any of the evidence yet. I was still angry and you could probably hear it in my voice. I recall taking a breath and calming myself a bit before I moved on. Two jurors actually shot a quick glare at the prosecution table before I moved on in my argument and eventually to the evidence.]

Where can a man go to defend himself when he’s innocent?

Where can he go to tell a jury that he’s innocent, if he can’t come here?

[Gestured to courtroom and I put my hand on the witness stand]

The Innocent Man/Woman theme is the classic theme that lets you steal away the “victim” status from the complainant and drape it all over your client instead.

Where can he go? The prosecutor just argued this was not the place for an innocent man to come to defend himself, that this courtroom was for alleged victims and “their truths,” whatever that means.

My client is not interested in “their truths,” he’s only interested in “the truth.” He thought this was where you went to tell the truth. You saw him. You heard him. He swore an oath, he told you what happened that night and took a vicious cross examination in return for telling the truth.

And now he’s just heard argument from the government’s representative that this wasn’t the place to defend himself. In America, no less, a man can’t defend himself any more perhaps, not in a sexual assault case. But if that’s true (and it isn’t),

Who is more a victim if not the innocent person falsely accused, regardless of their gender?

This theme resonates so long as it’s the truth. Jurors recognize this theme and you will always find a sympathetic ear to this theme if you have it to argue in your case. But your client has to take the stand with this theme. “If he wants to walk, he has to talk,” as the saying goes.

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_________________________________ Theme 6:

they may sincerely believe what they say, but that doesn’t make it true or real, etc.

This classic theme resonates because we all have experience with lies — because we lie too sometimes and we all have definitely lied about something to someone at some point in our lives. If you deny that, you’re lying now.

Nobody likes a liar/snitch/Judas/rat/tattle-tale...etc. _________________________________ This is the theme you will use (or touch upon) if the State uses a witness that lacks credibility for various reasons: a jail house snitch, accomplice witness testimony, younger witnesses, or witnesses with a testified to “poor character for truthfulness.” Use it on anyone whose testimony doesn’t add up or make sense, for whatever reason.

Some variations on this theme: 1.

2.

3.

4.

Liars are generally frowned upon, if not despised, because we all have experience with people like this. Those folks who will say anything to get something for themselves, the kind that will tell you one thing on Monday and a different thing on Tuesday, depending on their mood or what they think you can do for them. They don’t need grand reasons to lie either: they may lie with a purpose, to obtain a benefit; or they may lie out of spite, just trying to hurt another; or just because it’s fun or habit, who knows?

Who cares? You just have to show and argue they lied in this case about your client.

5.

6.

7.

8.

I’m not saying he/she is lying, just that they’re mistaken/wrong [child cases, sympathetic complainants] Sincere belief does not equal truth Tears do not equal truth Complainant was coached, not their fault they’re trying to please Mom/Dad/Grandma, etc.

State made a deal with the devil State wants you to trust a snitch they locked up All accomplices will point the finger at someone else to get out of trouble No Honor among thieves

_________________________________ Theme 7: The Axiom Closing, a.k.a., My theme is a saying that everyone knows _________________________________

All you have to argue is that they are lying and have reasonable argument and evidence to back it up. In a case where you have younger alleged victims and you want to soften the argument, you argue

This classic theme is more of a catch-all, but it almost always works because we as lawyers know tons of axioms that can form the basis for case 14

themes. And what we don’t know, the internet can help us find. Examples like, “Misery loves company,” or “Love is blind,” or “Hell hath no fury like a woman scorned.” We know these sayings because we grew up with them, heard them in bedtime stories (“Slow and steady wins the race”), or conversation (“That dog won’t hunt”). They are the ultimate in familiar and, if your evidence supports an axiom, consider this theme for closing.

***** Miscellaneous Tips for Closing

An older attorney I admire recently described an upcoming trial he was going to have in a complex federal case. White collar, tons of records, alleged fraud, etc. I asked him out of curiosity what the case theme was and he immediately replied, “No good deed goes unpunished.” I nodded and he nodded and I knew, the case was going to be packaged in a way so that any juror would understand it and “get it.” The defense was going to evoke a familiar feeling with the jury because everyone at some point in our lives has helped someone out of the goodness of their hearts, even if it was inconvenient for them, and later paid an unknown and unforeseeable price for it. Sometimes you’ve even been betrayed by the very person or entity that took your help gladly when they needed it. “No good deed goes unpunished” indeed. A classic axiom and one that everyone instinctively “gets.”

An Axiom closing can be a strong one and like many of the others, can be supplemented with the other classic closing themes. It all depends on your case and the evidence.

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Don’t forget that all these classic themes are not necessarily stand alones – you can mix and match as needed for your arguments and should do so. The inviolate rule is this: The more familiar you can make your argument feel, the more likely it will be accepted.

Be yourself and don’t try to copy others. It’s good to know other styles, but if something does not feel right to you, don’t do it, even if trial schools or certain methods of argument are promoted. Treat closing argument tips like a buffet and put on your plate only that which you know you will work for you. Try new things, but don’t be insincere, you and your client will pay for it in the end if you are.

Never forget as part of your closing to list all the evidence the State should have been able to provide if they had the right defendant (and they didn’t). The longer the list, the more RD you have to work with (as does the jury)!

Always argue the unlikelihood of the State’s case if you can. People like things that track with their own life experiences. I’ve argued in the past, “What rings true is what makes sense,” over and over again,

while pointing out the things that didn’t ring true/make sense in the State’s case and obtained many “Not Guilty” verdicts doing so.

(And these were closings without PowerPoint or many props at all, just words.) Jurors are reluctant to believe that which they regard as improbable, never forget that.

Always use good character evidence if you are lucky enough to have some and your client has no record. People act in accordance with their habits. Character is nothing more than habitual behavior learned from early on and repeated again and again, until it is instilled in the person such that it forms their character. How likely is it that someone with excellent character will depart from a lifetime of sound and prudent habits and commit a felony “just out of the blue?” In violation of their character and all of their ingrained habits? That’s not who they are. Certainly not who your client is. It’s not very likely at all.

Use that evidence and argue it along with everything else you have.

Always try to evoke an emotional response with your closing.

Emotions trump logic, so make the jurors feel that your case is the right way to go. If you make your case strictly rational and use logic alone, you are walking a tightrope.

16

If silence works in your closing argument, use it. There’s no law that says you have to fill the void constantly, always arguing. Collect yourself and your thoughts and use dramatic silence if it will help you.

Conversely, while arguing – don’t forget to project. Now is not the time to be a low talker, unless you’re right up at the bar and doing so makes sense. But remember the jury has to hear your words in order to be persuaded.

If your closing arguments feel like a one trick pony and you do the same thing over and over again — and you win doing it, don’t change a thing! You have found the perfect combo that works for you. It would be foolish to mess up the recipe for success now.

Never be afraid to alter your theme during trial, but before closing, if an unforeseen trial gift falls in your lap and the jury loves it. You argue the gift and keep hammering at it and incorporate it into your theme.

Never use conflicting defenses.

Example, in a sex case, the DNA isn’t there, it’s not my guy, but if it is there, it was consensual. If you try this tactic, you tell your client to enjoy prison because you will lose.

Never use conflicting defenses!

‘

Never put your morality or personal code of behavior as part of your argument (the sex by the road fiasco example).

Appendix: 1.

2.

Voice for the Defense, July 1991 Cheat sheet for common objections

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APPENDIX

Texas Criminal Defense Lawyers Association

Battling the Resistance-Brownsville November 18, 2020 Livestream

Topic: The Resistance is Self-Sabotage: Mental Health Speaker:

Joseph Hoelscher

3030 Nacogdoches Rd Ste 222 San Antonio, TX 78217-4540 joe@hgclaw.com (210) 222-9132

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

Mental Health and Criminal Practice

Joseph Hoelscher Managing Attorney Hoelscher Gebbia Cepeda PLLC 3030 Nacogdoches Rd., Ste. 222 San Antonio, TX 78217 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com

Joseph F. Hoelscher, II 3030 Nacogdoches, Ste. 222 San Antonio, TX 78217 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com SUMMARY Award-winning attorney with experience in over 100 trials, both civil and criminal, as well as high-profile and complex cases. Previous cases have featured in national media including America’s Most Wanted, Dateline, Crime Watch Daily with Chris Hansen, The New York Daily News, and National Public Radio. Published author and regular Continuing Legal Education presenter. Principle practice areas are civil Child Welfare, felony Child Abuse, and Intoxication Offenses.

PROFESSIONAL EXPERIENCE Hoelscher Gebbia Cepeda PLLC, San Antonio, Texas Managing Attorney, May 2017-Present General practice law firm with emphasis in Family and Criminal Law. Practice areas include child welfare (CPS/DFPS cases), Foster Parent law, Driving While Intoxicated and other intoxication offenses, major felonies, capital cases, complex divorce and child custody, and trial advocacy. ● Lead Counsel for novel case regarding paternity and child custody after informal assisted reproduction in an alleged same-sex informal marriage ● Mediated simultaneously, as Lead Counsel, twenty-three child welfare cases on behalf of an attorney and guardian ad litem against the Texas Department of Family and Protective Services, the Bexar County Ad Litem Attorneys’ Association, and the Bexar County District Attorney’s Office resulting in a reversal of a communications ban on our client ● Maintained winning record in jury trials in civil and felony cases ● Won appeals supporting suppression of blood alcohol evidence and standing for foster parent intervenors in a child custody case Our Lady of the Lake University, San Antonio, Texas Adjunct Professor of Political Science, Spring 2020 Teaching Law School Preparation & Intro to the Legal System (POLS 3337) course designed to prepare students for the first year of law school.

Hoelscher Law Office, San Antonio, Texas Attorney-Owner, May 2007-April 2017 General practice law firm with emphasis in Family and Criminal Law.

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● Successfully exposed systemic failures in the Bexar County breath alcohol testing program, resulting in Brady notices in dozens of cases ● Caught a corrupt lab tech resulting in the suspension of blood alcohol testing in Bexar County, ultimately affecting hundreds of cases ● Forced an investigation and suspension of a San Antonio Police Dept. Field Training Officer who was considered the best DWI officer in Bexar County ● Appointed by two courts as prosecutor pro tem St. Mary’s University, San Antonio, TX Asst. Director of Forensics, January 1998-July 2002 Developed and instituted primary training program for an internationally competitive speech and debate team. Taught persuasion, logic, rhetoric, and procedure. Analyzed lay person judging in adversarial systems to construct model decision making paradigms. ● Featured by the BBC for a global audience ● Toured Israel by invitation to lecture at major universities ● Worked with Russian, Japanese, British, and Israeli National Debate teams in cultural exchange programs Texas Military Institute, San Antonio, TX Director of Forensics, August 1999-July 2001 Head of nationally competitive speech and debate program, managed budget over $40,000 annually, hired and directed coaching staff.

CLERKSHIPS Hon. George Allen, District Court Judge (51st District Court), Waco, TX Judicial Clerk, August 2006 – January 2007 Prepared bench memoranda, performed legal research and analysis, handled court correspondence.

Goldstein Goldstein & Hilley, San Antonio, TX Law Clerk, May 2004 – August 2004 Performed legal research, drafted trial motions and supporting briefs, prepared appellate documents and writs. Assisted in trial preparation and investigation.

FORMAL EDUCATION Baylor University Law School, Waco, TX Juris Doctor with Criminal Law Concentration, November 2006 ● Order of Barristers, Moot Court Board, Moot Court and Client Counseling Teams. ● Dean’s Academic Excellence Scholarship 3

●

Designed trial advocacy problems for the Practice Court program as assistant to Prof.

Gerald Powell, Head of Practice Court.

St. Mary’s University, San Antonio, TX Master of Arts in International Relations with Western Hemisphere Concentration, December 2002 ● Conducted economic and political development field research in Haiti and Cuba ● Completed foreign language component of comprehensive examination in Spanish St. Mary’s University, San Antonio, TX Master of Arts in Communications Studies, December 2002 ● Thesis: Deconstructing Speech Codes - an analysis of critical race theory and deconstructionism in relation to First Amendment free speech protections in the context of institutional rules regulating communication in academic settings.

St. Mary’s University, San Antonio, TX Bachelor of Arts in Political Science, May 1998 ● University President’s Scholarship

PUBLICATIONS Contributor, “Law in the Time of Coronavirus.” Voice For The Defense (Vol. 49, No. 6, p. 24).

Texas Criminal Defense Lawyers Association, July/August 2020.

Practice Guide to Texas Drunk Driving Law, 2019 Ed., Matthew Bender/Lexis-Nexis Publishing, 2019.

Practice Guide to Texas Drunk Driving Law, 2018 Ed., Matthew Bender/Lexis-Nexis Publishing, 2018.

“Consider A National Registry For Child Abuse Cases,” San Antonio Express-News, September 3, 2018.

“Alcohol Can Dim Holiday Cheer,” San Antonio Express-News, Sunday, December 17, 2017.

Practice Guide to Texas Drunk Driving Law, Matthew Bender/Lexis-Nexis Publishing, 2017.

“Speedy Trial: Punishing the System for Making Us Wait.” Voice For The Defense Magazine, Texas Criminal Defense Lawyers’ Association, November 2015.

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“Sealing Criminal Records,” The Defender Magazine, San Antonio Criminal Defense Lawyers’ Association, (Summer 2012).

Contributor, “Foreign Corrupt Trade Practices Act,” Chester’s Practical Guide to International Trade Law, (2008).

SPEAKING ENGAGEMENTS “Playoffs?: Appeals,” Defense: We Make Champions CLE – MacAllen, Texas Criminal Defense Lawyers Association, November 2019.

“Playoffs?: Appeals,” Defense: We Make Champions CLE – San Angelo, Texas Criminal Defense Lawyers Association, September 2019.

“Discovery and Evidentiary Issues in Child Abuse Cases,” Against All Odds CLE, Texas Criminal Defense Lawyers Association, August 2018.

“Asymmetrical Discovery - Tactics to Make the State Fight Itself,” San Antonio Defense Lawyers’ Association Monthly CLE, August 2017.

“Elements of Storytelling in Criminal Trial,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, December 2016.

“Cops as Witnesses: Friend and Foe,” Plaintiff Litigation INSIGHT CLE, August 2015 “Communicating With Clients With PTSD,” PTSD: The Elephant in the Courtroom CLE, 2015.

“Unsinking the Ship: What to Do When Your Client Has Confessed,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, March 2015 “Marijuana Law in Texas,” Bexar County Republican Liberty Caucus, January 2015 “How Judges affect the Residential Care Industry,” San Antonio Residential Care Homes, October 2012 “Contract Systems for Indigent Defense,” Bexar County Task Force on Indigent Defense, March 23, 2011 “Changing Lanes: New Directions in Vehicle Search Laws,” San Antonio Criminal Defense Lawyers Assoc. Monthly CLE, June 2009 Business and Non-Profit Organization Radio Series, sponsored by Get Up! Community Center: Guest Host ● Serving the Community as a Business, July 5, 2009 ● Legal Issues Involving Minors, June 20, 2009 5

● ● ● ●

Selecting Legal Representation for Your Business, June 14, 2009 Open Forum Legal Q&A, June 6, 2009 Criminal and Civil Liability Issues for Non-Profits, May 30, 2009 The Role of Non-Profits in Criminal Justice, May 16, 2009

MEDIA APPEARANCES & COMMENTARY (Not Comprehensive) Medina, Mariah. “Bexar County to hold civil jury trials virtually, opening door to possibility of remote criminal jury trials.” KENS 5 News (CBS Affiliate), San Antonio, Texas, July 29, 2020.

Braff, Danielle. “Some lawyers have baked their political views into their firms’ DNA.” ABA Journal, June 1, 2020.

Lauer, Claudia and Colleen Long. “U.S. Prisons, jails on alert for spread of coronavirus.” The Washington Post, March 6, 2020.

Medina, Mariah. “Here’s Why January is Known as Divorce Month.” KENS 5 News (CBS Affiliate), San Antonio, Texas, January 1, 2020.

Williams, Geoff. “6 Financial Considerations for Remarriage.” U.S. News & World Report, November 18, 2019.

Salles, Alice. “Child Abuse Training for Teachers Both Praised and Criticized,” The Epoch Times, November 1, 2019.

Zapata, Kimberly. “How to Tell If Someone Is Lying,” O: The Oprah Magazine, October 25, 2019.

Bruk, Diana. “12 Ways to Get Help If You’re a Victim of Domestic Violence,” MSN.com, Oct. 22, 2019.

Yuko, Elizabeth. “10 Undeniable Facts About Mass Shootings in America,” Reader’s Digest, August 2019.

Martin, Eric J. “One Quarter of Small Businesses Plan to Reinvest in Their Enterprises,” CO (United States Chamber of Commerce Newsletter), May 7, 2019.

Kowarski, Ilana. “Why Is It So Hard to Get Into a Top Law School?,” U.S. News & World Report – Grad School Ranking Edition, March 2019.

Galli, Joe. “Lawyers respond to Gov. Abbott’s request to fast track executions for mass murderers.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, September 4, 2019.

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Caltabiano, David. “Convicted habitual drunk driver faces murder charge.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, February 28, 2019.

O’Neil, Bill. “Defense Attorney Criticizes Bexar Prosecutors.” KTSA Radio, San Antonio, Texas, March 16, 2017.

McCarty, Melissa. “San Antonio Mother of Three Remains Missing a Year After Dispute with Husband.” Crime Watch Daily with Chris Hansen. (Warner Bros.), Feb. 13, 2017 Dunson, Alex. “Special Report: Where’s Bianca?.” CBS-7 News (CBS Affiliate), Midland, Texas, Nov. 04, 2016.

Bourke, Justin. “Search Continues After 6-month Anniversary of S.A. Mother’s Disappearance.”

KENS-5 News (CBS Affiliate), San Antonio, Texas, Nov. 04, 2016.

Contreras, Guillermo. “A District Attorney’s Bumpy Ride.” San Antonio Express-News, Oct. 7, 2016.

Spriester, Steve. “SAPD Chief, Attorney Have Different Reactions to Dashcam Video.” KSAT12 News (ABC Affiliate), San Antonio, Texas, Aug. 29, 2016.

Santos, Renee. “Bexar County in Need of Foster and Adoptive Parents.” FOX 29 News (Fox Affiliate), San Antonio, Texas, Aug. 28, 2016.

Avila, Jaie. “Undercover Investigation: Parking Lots Booting Cars Against City Ordinance.”

NEWS 4 San Antonio (NBC Affiliate), San Antonio, Texas, Aug. 28, 2016.

Santos, Renee. “The Fight For Kenya: Families seeking adoption of one year old girl.” FOX 29 News (Fox Affiliate), San Antonio, Texas, May 5, 2016.

Degollado, Jessie. “Foster Parents Sue CPS To Adopt Child: Agency defends family reunification policy.” KSAT-12 News (ABC Affiliate), San Antonio, Texas, April 27, 2016.

Locklear, Michael. “Bexar County Catching Up On DWI Blood Sample Backlog.” NEWS 4 San Antonio (NBC Affiliate), Dec. 11, 2015.

Price, Robert. “Attorney Accused of Sex with Clients Remains on Job.” News 4 San Antonio (NBC Affiliate), Dec. 1, 2015.

Baucom, Emily. “Candid Conversation On Police Patrol.” WOAI News (Fox Affiliate), San Antonio, Texas, Nov. 20, 2015.

Chasnoff, Brian. “When Do We Get The Blood Back?” San Antonio Express-News, July 31, 2015.

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Spriester, Steve. “Bad Blood?” KSAT-12 News (ABC Affiliate), San Antonio, Texas, February 25, 2015.

Guzman, Stephanie. “Lawyers Adjust Amid Changes In Prosecuting DWIs.” San Antonio Business Journal, Jan. 30, 2015.

Malik, Alia. “DNA Links Man to Knifepoint Rape.” San Antonio Express-News, April 24, 2014.

Cassidy, Michelle. “Jury Acquits Man in Prostitute Knife Attack.” San Antonio Express-News, Feb. 4, 2014.

Goyette, Braden. “Dog left out in Texas heat bites face of 3-year-old girl.” New York Daily News. June 26, 2012.

Wolfe, Elaine. “Lawyers Challenge Reduced Fees for Children’s Court.” Plaza de Armas, 2011.

(No Longer Available).

Wolfe, Elaine. “For Poor Defendants, The Wheel Spins Once More.” Plaza de Armas, 2011. (No Longer Available).

AWARDS Reader’s Choice Runner Up, The San Antonio Current, 2020 Top DWI Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Top Family Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Client Champion Award – Gold, Martindale-Hubbell, 2019 Top 100 Trial Lawyers, National Trial Lawyers, 2014 - 2019 Featured Member, National College of DUI Defense, May 2019 “Best DWI Lawyers,” Scene in San Antonio Magazine, 2018, 2019 “Best Lawyers” list, Scene in San Antonio Magazine, 2012 - 2019 Client Distinction Award, Martindale-Hubbell, 2015 “Best Family Lawyers,” Scene in San Antonio Magazine, 2014, 2016 “Top 30 Criminal Defense Attorneys,” Scene in San Antonio Magazine, 2014, 2015, 2016 “Best of the Best: Criminal Practice,” Texas Lawyers’ Group, 2012 Avvo.com “Superior” 10 out of 10 Attorney Rating, 2011-Present Delta Theta Phi International Legal Fraternity: Justice James Norvell Memorial Award & Scholarship, 2005, 2006 University of San Diego: 2nd Place Overall, National Criminal Procedure Tournament, 2005 Naman Howell Smith & Lee: Semi-Finalist, Client Counseling Tournament, 2005 Texas Forensics Association: Texas State Championship Coach, 2001 International Public Debate Association: National Debate Champion, 1998

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MEMBERSHIPS AND ADMISSIONS Member, State Bar of Texas, Admitted May 2007 Texas State Bar No. 24042972 Admitted to practice in the Federal Western District of Texas, 2007 Member, Board of Directors, Texas Criminal Defense Lawyer’s Association, June 2020 – Present • •

Member, Judicial Conduct Committee Member, Media Relations Committee

Member, North San Antonio Chamber of Commerce, 2018-Present Board Member, Starlite Autism Center, 2018-2020 Co-Chair, Retention Committee of the San Antonio Criminal Defense Lawyers Association (advises newly elected Bexar County DA regarding retention of ADAs), 2018 Member and Speaker, Texas Criminal Defense Lawyers Project, 2018-Present Member, College of the State Bar of Texas, 2009-Present Member, Pro Bono College of the State Bar of Texas, 2015-Present Member, American Bar Association Advisory Panel, 2009-2014 Mentor, San Antonio Bar Association Mentorship Committee, 2010-2015 Member, National Association of Criminal Defense Lawyers, 2009-Present Member, National College of DUI Defense, 2016-Present Member, Texas Criminal Defense Lawyers’ Association, 2007-Present Founding Member and Parliamentarian, Texas Association of Cannabis Lawyers, 2017-Present Member, San Antonio Criminal Defense Lawyers’ Association, 2007-Present Member, Legal Committee, National Organization for the Reform of Marijuana Laws, 2008Present (some years excepted)

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I.

Overview

I was once told, “arguing with a crazy person makes you look crazy, too.” I think that’s right.

Which is why I avoid talking to most prosecutors. As the voice of the accused, though, we can’t avoid talking to our clients. Inevitably, as criminal trial lawyers, we have to not only talk with mentally impaired persons, but represent their interests, sit with them, and tell their stories. How does that make us look? For a lot of jurors, prosecutors, and judges, it makes us look worse than crazy. In their minds, we are gaming the system to help our clients escape responsibility for their actions. After trying both competency and sanity to verdict, interviewing jurors post-verdict, and working with innumerable mental health professionals on a variety of civil and criminal cases, I believe the best way to raise mental health concerns is by following the experts. This paper provides an overview of how to identify and work with clients who have mental health issues, and then address competency and/or sanity in the criminal context.

II.

Identifying Mental Illness Criminal defense attorneys are in unique positions to assist those suffering from mental

illness. Criminal defense attorneys usually come to clients in their darkest, lowest periods in their lives. They may be suffering from severe, debilitating mental illness that substantially contributed to their legal situation. For example, those suffering from mental illness may be struggling to understand the consequences of their actions, control their physical movements, or even comprehend reality. The unique position of criminal defense attorneys allows the lawyer to skillfully and delicately guide the client in treatment; assisting them to regain control of their lives and avoid recidivating behaviors.

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Every client suffering from mental illness is unique in their own right. Criminal offenders tend to be less educated, addicted to some kind of debilitating substance, intellectually disabled or severely mentally ill. Often, a client will be suffering from multiple issues at once. When a client is both suffering from a drug addiction and a severe mental illness, treatment must be unique, tailored and targeted to ensure that the client can both comprehend their behaviors and ensure they do not relapse due to their mental condition.

However, an attorney must be able to guide such a client through the legal process, which can be difficult and may result conflicting interests at times. One of the most difficult parts of representing a mentally ill client can be their denial that anything is wrong with them. Many of these people are self-medicating with addictive, sometimes illegal, substances; and they struggle to comprehend the legal system. Texas has adopted many provisions designed to assist the practitioner, as well as the legal system, in dealing with individuals suffering from mental illness.

These provisions recognize that each case should be treated based on its unique facts and circumstances. Representing the mentally ill requires the attorney to function on a different level, as they work within both the legal and mental health fields to get the best results for the client. a. Interview the Client The first place the lawyer should look to identify potential mental illness is by talking to the client. Take time to interview your client thoroughly. The longer you talk to the client, the more likely you will begin to notice signs if they are suffering from mental illness.

Mental illness can range from depression to severe cases of schizophrenia. Obviously, signs of mental illnesses range drastically, and most attorneys are not licensed mental health professionals. However, there are some signs that are often present in someone suffering from

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mental illness and may support your efforts to get the client further evaluated. Some signs to look for are: •

Confused thinking;

•

Sadness or irritability;

•

Extreme highs and lows in emotional responses;

•

Excessive fears or anxiety to social or personal situations;

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Withdrawn social behavior;

•

Drug addiction;

•

Delusional thoughts;

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Hearing or seeing things that are not actually there (i.e., hallucinations);

•

Strong feelings of anger or uncontrollable anger;

•

Dramatic changes in eating or sleeping habits (e.g., anorexia or insomnia)

•

Suicidal thoughts or tendencies;

The key thing to keep in mind during these interviews is that you must find a delicate balance between questioning them about any potential mental health issues and maintaining trust. As a counselor at law, it is important that you maintain the trust of your clients, and this challenging task can be compounded when someone is suffering from a debilitating mental health disorder.

Some clients are open about their mental health diagnosis, others refuse to recognize that they are different and struggle to understand why they are in the situation they are in. You must learn how to deal with both. b. Family History Often, the family and friends of the client can be just as useful a tool as the client. They will have much needed knowledge regarding day-to-day interactions with the client. Furthermore, a 12

parent may know if the client was treated for mental illness or has a mental health diagnosis.

Furthermore, investigating where the client came from may clue you in on a potential history of mental illness within the family and trigger a duty to investigate further for potential mitigating evidence. For example, if a client’s parents are heavy drug users, that may suggest that there is a history of potential addiction, or health conditions within the family. Some important questions to ask include: How did the client behave growing up? What kind of friends did they have? Did they do well in school? Did they suffer any head trauma? Did they have a healthy home environment? Was there a history of abuse? Were they ever hospitalized? c. History of Mental Illness The interview with the client and the collaterals may trigger a duty to further investigate a client’s mental health for potential defense or mitigating evidence. If the client has been hospitalized in a mental health facility or has been treated by multiple mental health professionals in the past, these records can be a gold mine for mitigation and punishment evidence. Even if you believe they may be damaging and should not be introduced, you have both an ethical and legal duty to investigate these documents and may a calculated, knowledgeable decision not to use them. If your client indicates they have had treatment or have a medical condition, you should get them to authorize disclosure of their records by signing a HIPAA release. See Form, Authorization to Disclose Protected Health Information, The Office of the Attorney General of Texas, available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumerprotection/hb300-Authorization-Disclose-Health-Info.pdf.

III.

Competency

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Evaluating and advising a client regarding mental health issues such as competency or insanity requires a firm knowledge of both the criminal justice system and the mental health system. In addition, you must have a clear understanding of both the psychological and legal factors that are unique to each case.

Competency refers to whether the defendant is presently able to comprehend the charges against him, understand the legal process, and participate in his or her defense. Competence is determined at the time of the proceedings, not at the time of the offense. Lasiter v. State, 283 S.W.3d 909, 925 (Tex. App.—Beaumont 2009, pet. ref’d). On the other hand, insanity refers to whether the defendant had the mental capacity to comprehend the crime at the time of commission. These two issues are the main issues that arise during representation of an individual suffering from mental illness. a. Competency Defined A criminal defendant is presumed competent to stand trial in Texas. Tex. Code Crim.

Proc. art. 46B.003(b). This means a criminal defendant is competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. “A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person.” Id. at 46B.003(a). b. Raising Competency The issues of competency to stand trial can be raised at any time, by any party to the case, or on the judge’s own suggestion. Tex. Code Crim. Proc. art. 46B.004 (a). The party suggesting incompetency should file a motion, which may be supported by affidavits setting out the facts on

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which the suggestion is made. Id. See Form, Motion Suggesting Incompetency and for Evaluation.

Once a party or the judge has suggested incompetency, the court shall conduct an informal inquiry into whether “some evidence from any source . . . would support a finding that the defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. art. 46B.004(c). If the court determines some evidence exists to support a finding of incompetency, the court will stay all proceedings in the case to conduct an evaluation. Id. at 46B.004(d). c. Competency Evaluations Once the judge has determined that there is credible evidence that suggests the defendant may be incompetent to stand trial, the judge shall order a qualified psychiatrist or psychologist to conduct an evaluation of the defendant to determine whether the defendant is competent to stand trial. Tex. Code Crim. Proc. art. 46B.021(a). This expert will: (1) examine the defendant and report to the court on the issue of competency or incompetency of the defendant; and (2) testify as to the issue of competency or incompetency of the defendant at any trial or hearing on the matter. Id. This expert must meet qualifications listed in Article 46B.022 of the Texas Code of Criminal Procedure, which requires them to be licensed in the State and have the appropriate certifications, training and criminal forensics training. An expert must satisfy the precise list of requirements under this section to qualify as an expert for purposes of testifying and determining a defendant’s competency. Owens v. State, 437 S.W.3d 584, 586 (Tex. App.—Texarkana 2014), rev’d on other grounds, 473 S.W.3d 812 (Tex. Crim. App. 2015).

There are a number of factors that will be considered during this evaluation by the qualified expert when formulating an opinion as to competency:

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•

The capacity of the defendant during criminal proceedings to: (1) rationally understand the charges against them and the potential consequences of the pending criminal proceedings; (2) disclose to counsel pertinent facts, events, and states of mind; (3) engage in reasoned choice of legal strategies; (4) understand the adversarial nature of criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify in their own defense;

•

Whether the defendant is suffering from a diagnosed mental illness or mental retardation and the impact that this mental health diagnosis has on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

•

If the defendant is taking a psychoactive medication: (1) whether the medication is necessary to maintain competency; and (2) the effect, if any, the medication may have on the defendant’s appearance, demeanor or ability to engage and participate in proceedings.

Tex. Code Crim. Proc. art. 46B.024. The attorney is not required to be present during such an evaluation, however, some client prefer to have legal representation during a competency evaluation and proceeding, and they are entitled to such representation. Id. at 46B.006. Attending these evaluations can provide you with valuable information for the case. Furthermore, if you are present, you can help ensure that your client is not answering any questions that would violate their constitutional rights, such as questions that would result in a confession by the defendant. d. Agreed vs. Contested Incompetency Findings After an evaluation is conducted, a competency finding will be either agreed or contested. If both the State and the defense agree that the defendant is not competent, no hearing is necessary to make a finding of incompetency. Tex. Code Crim. Proc. art. 46B.005(c). Following an agreed

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incompetency finding, the court must next determine whether the defendant is a danger to either themselves or others. If the defendant is not a risk, they may be released and treated on an outpatient basis for the purpose of attaining competency. Id. at 46B.072. Such a commitment to outpatient treatment cannot exceed 120 days.

Alternatively, if the defendant is not released on bond pursuant to Texas Code of Criminal Procedure 46B.072, then the defendant is committed to an in-patient mental health facility for a period not to exceed 120 days. Id. at 46B.073.

If the defendant is charged with a violent offense defined under Article 17.032(a) of the Code of Criminal Procedure or the indictment alleges use of a deadly weapon, the defendant will be committed to a maximum-security unit or a facility designated by the Department of State Health Services. Id. at 46B.073(c).

If the issue of competency is not agreed and either the state or the defense is contesting the issue of whether the defendant is competent, then the court shall hold a trial on the issue of competency under Article 46B.005. This hearing is conducted through a bench trial unless either party or the court requests a jury for the issue. Tex. Code Crim. Proc. art. 46B.051(a). The verdict on the issue of competency must be unanimous. Id. at 46B.052(b). If the jury (or court) find the defendant to be incompetent, then the issue of whether the defendant should be released on bail or ordered to in-patient treatment is addressed by the court, not the jury. Id. at 46B.071– 46B.072. e. Extended Commitment The program provider for which the defendant is ordered for competency restoration can request an extension of the restoration period under Article 46B.080. The court may enter an order extending the initial restoration period for an additional 60 days if the court determines

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that: (1) the defendant has not attained competency; and (2) the extension of the restoration period will enable the facility or program to restore the defendant to competency within the extension period. Only one period of extension can be granted under this provision. Tex. Code Crim. Proc. art. 46B.085. After an initial restoration period and an extension ordered, any subsequent orders for treatment must be issued under Subchapter E or F, the provisions dealing with civil commitment orders.

IV.

Sanity

As is the case with competency, a criminal defendant is presumed to be sane until the contrary is established by a preponderance of the evidence. Bonner v. State, 520 S.W.2d 901 (Tex. Crim. App. 1975). Because of this presumption of sanity, the defendant will bear the burden of proving that he or she was insane at the time of the offense. Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993); Rundles v. State, 486 S.W.3d 730 (Tex. App.—Texarkana 2016, pet. ref’d); see also Allen v. State, 232 S.W.3d 776 (Tex. App.—Texarkana 2007, no pet.); Reyna v. State, 116 S.W.3d 362 (Tex. App.—El Paso 2003, no pet.); Dashield v. State, 110 S.W.3d 111 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

a. Raising the Insanity Defense In order to raise the insanity defense, a defendant must file with the court a notice of the defendant’s intention to offer evidence of insanity. Tex. Code Crim. Proc. art. 46C.051(a). The notice must include a certificate of service to the attorney for the State and must be filed at least 20 days prior to trial or 20 days prior to a pre-trial hearing. See Form, Notice of Intent to Raise Insanity Defense; Motion for Examination Regarding Insanity Defense.

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b. Burden of Proof Since the insanity defense is an affirmative defense, a defendant generally bears the burden to prove that (1) because of severe mental disease or defect, (2) he or she did not know right from wrong at the time of the offense. However, if the court has previously adjudged the defendant insane, the burden shifts to the State to prove the defendant was sane at the time of the offense. Tex. Penal Code Ann. § 8.01; Hines v. State, 570 S.W.3d 297, 303 (Tex. App.— Houston [1st Dist.] 2018, no pet.); Riley v. State, 830 S.W.2d 584, 585 (Tex. Crim. App. 1992). c. Evaluation Similar to the competency findings, the court may order the defendant to an evaluation regarding the insanity defense. Tex. Code Crim. Proc. art. 46C.101(a). Furthermore, the defense can appoint one or more disinterested experts to assist in formulation of the defense apart from the court’s expert. “If the defendant wishes to be examined by an expert of the defendant’s own choice, the court on timely request shall provide the examiner with reasonable opportunity to examine the defendant.” Id. at 46C.107. Keep in mind that the Code further provides for provisions that force the defendant to submit to an evaluation ordered under the provisions above. Id. at 46C.104.

A written report of the evaluation shall be submitted to the court no later than the 30th day after the date of the order for examination, and a copy of this report is to be disclosed to all attorneys on the case. Id. at 46C.105(a). This report must include a description of the procedures used during the examination and the observations and findings pertaining to the insanity defense.

Id. at 46C.105(b). The examiner must also include a separate report concerning whether the defendant is presently suffering from mental illness and would benefit from mental health services and whether they are suffering from mental retardation. Id. at 46C.105(c).

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d. Determining Insanity The issue of insanity is a fact question left to the trier of fact. Therefore, if the defendant is being tried by the jury, the jury decides whether the defendant was insane at the time of the offense. Id. at 46C.151. However, the judge must first decide if there is competent evidence to support the issue being submitted to the jury in the first place. Id. In order to determine whether the defendant is not guilty by reason of insanity: (1) the prosecution must establish beyond a reasonable doubt that the alleged conduct constituting a crime was committed by the defendant; and (2) the defendant must establish by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct.

If these factors are established, the jury may enter a finding of either guilty, not guilty, or not guilty by reason of insanity. Id. at 46C.151. However, the parties to the case, with the consent of the judge, agree to dismiss the indictment or information on the ground that the defendant was insane or enter judgment of dismissal due to the insanity. An entry of judgment under these provisions is the same as if the defendant is found not guilty by reason of insanity.

Id. at 46C.153(b)–(c).

V.

Mental Health and Mitigation

Even where the State jumps the hurdles of competency and sanity, mental health evidence can play a powerful role at sentencing. Defense counsel must be ready to rebut fearmongering by the prosecution that plays on the stigma of mental health concerns. We must also look for opportunities to gain sympathy from the jury or mitigate aggravating factors by explaining our client’s mental or emotional impairments. For example, in an aggravated assault case, a convicted service member with PTSD because of his/her service may be viewed much more

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favorably by a judge or jury. However, that same client could be demonized as inherently violent and thought to require a longer sentence to protect the public. Explaining how PTSD works, deficiencies in treating it by the VA, a treatment plan that will help our veteran, and telling the story of how he or she came to have PTSD could relieve the jury’s fears while maybe convincing the jurors that our soldier has been punished enough by the system that let him/her down. That is a recipe for leniency. In fact, it may be the best defensive strategy you have in a particular case.

Preparing mitigation requires expert assistance. Proving that your client’s prior history is no indication of a criminal future requires expert opinion and a credible treatment plan. Many mental health disorders have chemical or neurological causes, further mitigating culpability as they are beyond your client’s control. Look for mitigation experts who can handle the life history investigation and make referrals to experts such as neuropsychologists or specialists in your client’s specific mental health condition. At a minimum, hold the State’s experts who testified that your client is competent, despite mental health issues, to their prior testimony where their focus was on how easily you could overcome your client’s condition. Then, ask that their recommendations inform your client’s conditions of probation by specifying accommodations he or should be allowed.

VI.

Ineffective Assistance of Counsel

As defense attorneys, we have an obligation to investigate. This duty does not mean that counsel has an obligation to present all evidence concerning mental health diagnosis to a jury or judge. However, failure to investigate possibility of an insanity defense has constituted ineffective assistance of counsel. See Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009).

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This is true even where the insanity defense could have been rooted in voluntary intoxication.

See Ex Parte Howard, 425 S.W.3d 323 (Tex. Crim. App. 2014).

Further, failure to investigate for mitigation evidence, such as mental health history, can be ineffective assistance. See Wiggins v. Smith, 539 U.S. 510 (2003) (failure to investigate Defendant’s life foe mitigation evidence was ineffective), Lampkin v. State, 470 S.W.3d 876 (Tex.App. – Texarkana 2015, pet. ref’d) (failure to investigate mental health history for use in mitigation was ineffective). In the capital litigation context, failure to present mitigation evidence has been held ineffective, repeatedly. See Ex Parte Gonzales, 204 S.W.3d 391 (Tex.Crim.App. 2006). It is vital that you, as a defense attorney, at least investigate and determine whether these documents and records would be helpful for the defense.

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Texas Criminal Defense Lawyers Association

Battling the Resistance-Brownsville November 18, 2020 Livestream

Topic: The Battle Must be Fought Anew Every Day: Pretrial Speaker:

Dustin E. Nimz

900 8th St. Ste 1230 Wichita Falls, TX 76301-6814 dustin@nimzlaw.com (940) 766-5335

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

Battling the Resistance November 18, 2020 Brownsville, Texas

THE BATTLE MUST BE FOUGHT ANEW EVERY DAY: PRETRIAL INVESTIGATION AND PRACTICE

Speaker:

Dustin Nimz Nimz Law, PLLC 900 8th Street #1230 Wichita Falls, Texas 76301 (940) 766-5335 NimzLaw.com Dustin@NimzLaw.com

THE BATTLE MUST BE FOUGHT ANEW EVERY DAY: PRETRIAL INVESTIGATION AND PRACTICE

By Dustin Nimz INTRODUCTION Pretrial investigation is the review of the facts of the case and background information of the defendant that allows the attorney to determine the defenses and mitigation necessary to defend the client. Pretrial investigation is not a one-step process, nor is it merely the initial client interview. Attorneys frequently start and end the process of pretrial investigation with the initial client interview, a sit down conversation in the office or jail where they ask the client what happened at the time of the offense. While this is a necessary step, it is incomplete because it frequently fails to address the defendant’s motivations and personal history. The key to pretrial investigation is making a plan to identify the key areas that are beneficial to the defendant’s case and devoting time and resources to develop evidence and arguments to support those areas.

DUTY TO INVESTIGATE Texas Rules of Professional Responsibility No specific rules but the State Bar of Texas Performance Guidelines for Non-Capital Criminal Defense Representation [Guideline 4.1: Investigation – Generally] state that a lawyer representing a criminal client has a duty to investigate the case as promptly as possible ABA Rules American Bar Association Standards for Investigation and Preparation Standard 4-4.1 Duty to Investigate and Engage Investigators (a) Defense counsel has a duty to investigate in all cases, and to determine whether there is a sufficient factual basis for criminal charges. (b) The duty to investigate is not terminated by factors such as the apparent force of the prosecution’s evidence, a client’s alleged admissions to others of facts suggesting guilt, a client’s expressed desire to plead guilty or that there should be no investigation, or statements to defense counsel supporting guilt. (c) Defense counsel’s investigative efforts should commence promptly and should explore appropriate avenues that reasonably might lead to information relevant to the merits of the matter, consequences of the criminal proceedings, and potential dispositions and penalties.

Although investigation will vary depending on the circumstances, it should always be shaped by what is in the client’s best interests, after consultation with the client. 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. (d) Defense counsel should determine whether the client’s interests would be served by engaging fact investigators, forensic, accounting or other experts, or other professional witnesses such as sentencing specialists or social workers, and if so, consider, in consultation with the client, whether to engage them. Counsel should regularly re-evaluate the need for such services throughout the representation. (e) If the client lacks sufficient resources to pay for necessary investigation, counsel should seek resources from the court, the government, or donors. Application to the court should be made ex parte if appropriate to protect the client’s confidentiality. Publicly funded defense offices should advocate for resources sufficient to fund such investigative expert services on a regular basis. If adequate investigative funding is not provided, counsel may advise the court that the lack of resources for investigation may render legal representation ineffective.

Case Law - Standard of Review for IAC and Investigation Ex parte Martinez, 195 SW 3d 713 (Tex. Crim. App – 2006) “A defendant claiming ineffective assistance of counsel under the Sixth Amendment to the United States Constitution must demonstrate that (1) counsel's conduct "fell below an objective standard of reasonableness," and (2) this incompetence caused the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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 v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. [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." Id. at 522-23, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). Ex parte Martinez, 195 SW 3d 713 (Tex. Crim. App. – 2006)”

Ex parte Briggs, 187 SW 3d 458 (Tex. Crim. App – 2005)

“In his letter of May 18, 2000, counsel told applicant that "I have written letters and have verbally requested the balance of my fee, which is over $5,000, as well as money to hire experts. I have been told that there is no money available for either." After noting that his $15,000 fee was "well below the normal minimal fee for murder," counsel stated that he had not charged more "because I knew finances were a problem." But he could not hire experts "unless the money is available to pay for their research and expenses for coming to court to testify."

Thus, he did "not feel justified in continuing in this matter through trial for what I have been paid."

When it became clear that applicant could not "come up with" the remainder of the fee or additional money for medical experts, a reasonably competent attorney would have several options: 1. Subpoena all of the doctors who had treated Daniel during the two months of his life to testify at trial. Introduce the medical records through the treating doctors and elicit their expert opinions; 2. If counsel was convinced that applicant could not pay for experts to assist him in preparation for trial or to provide expert testimony, withdraw from the case, explaining to the court that applicant was now indigent, prove that indigency (as was done in the writ proceeding), and request appointment of new counsel;[25] 3. Remain as counsel with the payment of a reduced fee, but request investigatory and expert witness fees from the trial court for a now-indigent client pursuant to Ake v. Oklahoma.

More than a decade ago, this Court held that Ake applies to the appointment of a defense expert pathologist to investigate a complainant's cause of death when that is a crucial issue in a particular case. Given both the State's and applicant's interest in maintaining "the accuracy of the proceeding," the trial court undoubtedly would have permitted state-funded appointment of expert assistance under Ake had applicant's attorney put on proof of his client's present indigency. Failing that, applicant could have appealed on the basis of the trial court's failure to appoint expert assistance under Ake. 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."

INVESTIGATING THE CASE Client Contact The Texas Fair Defense Act requires that an appointed attorney “make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed.”

In order to meet our requirement for same-day contact my office will send a letter to every client immediately to let them know that I have been appointed to their case. It states that I will come visit them if they are in jail or requests that they contact my office for an appointment if they are out on bond. In addition to the letter, we send a Criminal Intake form (Located in the Appendix) to each client in jail. The form is two pages, front and back, and provides me with all the basic information that I will need to start on the case; biographical information, personal contacts, written permission to discuss the case with others, witnesses, criminal history, and mental and physical illness information. The letter, a SASE, and the form are under an ounce in the mail, require only one stamp, and provide me with a way to start working on the case immediately. It also gives my client important advice to not talk to law enforcement nor to discuss the case on the monitored jail phones.

Client contact is not only required but is essential to getting the information that the attorney will need for the case. Following the letter the lawyer must talk to the defendant face-toface as soon as possible. For retained clients this is generally easy because they come to office to consult and hire. For appointed clients it is more difficult because the attorney will often need to track them down. Jail clients can be the easiest to find but are often the most difficult to visit for the busy attorney. In many counties you can take advantage of secure video conferencing software to be able to set up a quick initial trust-building meeting with the client so they know who their lawyer is and that they working on the case. Phone and video meetings, however, are limited as they present a barrier between lawyer and defendant. It is hard for the defendant to trust someone on a screen and reveal important details about the case and his life. Nothing beats a face-to-face meeting where your client can look you in the eyes and discuss his needs.

When lawyers meet with clients for the first time it is common to focus on the events surrounding the offense, however, “crime doesn’t happen in a vacuum”1. The lawyer must go further than the offense at hand to understand this defendant’s history so they can develop an understanding of how the offense came to be committed, as well as important information that will be useful for further investigation and during negotiations.

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Lindsey Laneheart-Craig – Craig Trial Consultants – Lubbock, TX

The discussion begins at birth. The conversation must start at the beginning because all of the influences and choices in a defendant’s life eventually brought them to be accused of the offense. The reason to ask these questions is because the practitioner needs to find something that the jury can relate to and to identify with the defendant.

Collecting Records for the Mitigation Investigation 1. Types of Records The following is a list of records a mitigation specialist will likely collect, depending on the specific needs of your case. The list is by no means exhaustive, but it gives an idea of the common records that are needed in a mitigation investigation: a. Medical records b. Psychological records c. Psychiatric records d. Educational and Special Educational records e. Social Security Disability records f. Employment records g. Personnel records h. Social Security Earnings records i. Military records j. Child Protective Services and other community agency records k. Foster care and other placement records l. Arrest, conviction, correctional, and probation records m. Juvenile arrest, conviction, correctional, and probation records n. Police Department calls for service records to client’s residences

The following records from discovery and/or the investigation of the crime, and really all records from discovery, are relevant to the mitigation investigation and should be provided to your mitigation specialist: a. Client’s statement

b. Witness statements c. Affidavits of Non-Prosecution (which is a type of statement) d. Offense reports e. I.R.S. records f. Property records g. Court records h. Attorney General records and information i. Texas Department of Criminal Justice Institutional Division j. County Jail records k. Police Department records of complaints l. Video Cam surveillance records m. Crime Lab records n. Medical Examiner (autopsy) reports o. Crime Stoppers records p. Social Media in all forms

2. Getting Records with a Signed Release A HIPAA compliant release with your client’s full name, date of birth, social security number if applicable, and signature is needed to obtain the following records. The mitigation specialist will collect these records with a Business Records Affidavit so they are suitable for introduction as exhibits. a. Medical records b. Psychological records c. Psychiatric records d. Educational and Special Educational records e. Employment records

f. Personnel records The following records require agency-specific signed releases. a. Social Security Disability records require SSA-3288 b. Social Security Earnings records require SSA-7050-F4 c. Military records require Standard Form 180 I encourage you to request these records with a signed release rather than a subpoena so the records will come directly to you instead of being shared with the prosecution.

If agencies refuse to provide records, then consider issuing a subpoena.

3. Use of Subpoenas and Motions/Court Orders to Obtain Records When using a subpoena to obtain records you should first file a specific motion requesting the information in question, and get a court order requiring same be produced.

After obtaining a court order requiring the production of the documents, issue a subpoena duces tecum and attach the court order as an exhibit. I will then either subpoena the documents using the duces tecum to a specific pre-trial court setting, or request that the documents be produced instanter. If I am attempting to subpoena information which I believe a party may deem sensitive, I will state in my motion for discovery and subsequent subpoena that the records may be produced to the court “in camera”. My general experience has been once the court signs and order requiring the documents to be produced, most entities will comply with an instanter request because they do not want to appear in court unnecessarily. However, this is not the case with Child Protective Services records as they will require the redacted records to be produced in conjunction with a signed agreed protective order covering same, or have the records redacted and produced “in camera”. a. Child Protective Services Use of subpoenas to obtain CPS records, which generally are subpoenaed “in camera”.

Note: Provisions which generally necessitate an “in camera” inspection of CPS records: (1) Tex. Fam. Code Section 261.201 Confidentiality and Disclosure of Information (2) 40 Tex. Admin. Code Section 700.202 Definitions (3) 40 Tex. Admin. Code Section 700.203 Access to Confidential Information Maintained by the Texas Department of Protective and Regulatory Services (TDPRS)

(4) 40 Tex. Admin. Code Section 700.204 Redaction of Records Prior to Release (5) 40 Tex. Admin. Code Section 700.205 Procedures for Requesting Access to Confidential Information (6) 40 Tex. Admin. Code Section 700.206 Videotapes, Audiotapes and Photographs (7) 40 Tex. Admin Code Section 700.207 Charges for Copies of Records

Procedurally you can request and/or subpoena these records, and they will be subject to being redacted by the CPS legal/records department, and upon being “desensitized” they are produced “in camera” for inspection by the court. I sometimes receive the redacted records in hardcopy form, but lately have been receiving them in digital form on a CD or DVD. In reviewing these records if you discover a redacted portion which may contain material, relevant or potentially exculpatory information you should file a specific motion for discovery on that issue, and assert your rationale for requiring the court to order CPS to produce that information in an un-redacted form. b. Juvenile Detention and Probation Records I would file a motion specifically referencing and requesting that this type of information be produced by the State or in the alternative order that it be produced and file a subpoena duces tecum requesting same and attaching a copy of the Court’s order stating what must be produced.

If the State files a Motion to Quash, I initially would agree to the documents being produced “in camera” to the Court, subject to review, and then produced to the Defendant. If the court refuses to produce the documents submitted “in camera”, request the court make a finding that you are not entitled to said documents, object to the court’s finding, and then have all the documents marked as an appellate exhibit, to be unsealed if an appeal is pursued. c. Adult Probation I would file a motion specifically referencing and requesting that this type of information be produced by the State or in the alternative order that it be produced and file a subpoena duces tecum requesting same and attaching a copy of the Court’s order stating what must be produced.

If the State files a Motion to Quash, I initially would agree to the documents being produced “in camera” to the Court, subject to review, and then produced to the Defendant. If the court refuses to produce the documents submitted “in camera”, request the court make a finding that you are not entitled to said documents, object to the court’s finding, and then have all the documents marked as an appellate exhibit, to be unsealed if an appeal is pursued. d. Jail

I would file a motion specifically referencing and requesting that this type of information be produced by the State or in the alternative order that it be produced and file a subpoena duces tecum requesting same and attaching a copy of the Court’s order stating what must be produced.

If the State files a Motion to Quash, I initially would agree to the documents being produced “in camera” to the Court, subject to review, and then produced to the Defendant. If the court refuses to produce the documents submitted “in camera”, request the court make a finding that you are not entitled to said documents, object to the court’s finding, and then have all the documents marked as an appellate exhibit, to be unsealed if an appeal is pursued. e. Prison Most types of Prison Records are available to be subpoenaed, so long as you are willing to pay for the expense of copying and delivering the records to you, and you send the subpoena to the correct contact individual. In most instances, you will be attempting to get your client’s prison records, and as such, a release is the most expedient manner in which to request these records. I have listed below some of the addresses and contact information I have used in the past to request certain documents regarding T.D.C.J.I.D. records.

(1) Offender Visitor List Attention: Custodian of Records Texas Department of Criminal Justice T.D.C.J. Open Records Office and Pen Packets Huntsville, Texas 77342-0099 Phone: (936) 437-8696 Fax: (936) 437-6227

(2) Disciplinary Records Attention: Custodian of Records Texas Department of Criminal Justice T.D.C.J. Open Records Office and Pen Packets Huntsville, Texas 77342-0099 Phone: (936) 437-8696 Fax: (936) 437-6227 (3) Inmate Grievance Records Attention: Custodian of Inmate Grievance Records

901 Normal Park, Suite #101 Huntsville, Texas 77320 Phone: (936) 437-8024

(4) Inmate Medical Records Attention: Custodian of Medical Records Health Services Archives 262 FM 3478, Suite #B Hunstville, Texas 77320 Phone: (936) 439-1345 You may also need to contact UTMB Managed Care to subpoena medical records and can get their contact information by calling their office at (936) 439-1345. As such, once you contact this office you can determine if you need to issue two separate subpoenas.

f. Medical and Mental Health If these records cannot be obtained with a signed HIPAA compliant release, then consider using court action to collect them. When subpoenaing medical records, mental health records, or counseling and therapy records, you will need the individuals full name, date of birth, social security number if available, the dates and/or period of treatment specific to you case, and the name and address of the facility and/or care provider. These types of subpoenas are sometimes objected to by the facility or care provider under HIPAA. If this is the case, I would file a specific motion for discovery on this issue and address same with the court, specifically identifying why this information is necessary. If the court grants your discovery request, reissue the subpoena with the attached order stating that the described information is to be delivered “in camera� to the Court for inspection, and within the subpoena itself identify a pretrial hearing date and time for which these records are to be produced. g. Miscellaneous Records I will also use a court order and subpoena duces tecum to request and obtain the following additional types of records: (1) Employment Records

If these records cannot be obtained with a signed HIPAA compliant release, then consider using court action to collect them. I first file a specific motion for discovery requesting these specific type of records, identifying the employer name and address. Once I have obtained a court order regarding this type of information I will issue a subpoena duces tecum and attach the court order as an exhibit.

(2) School Records If these records cannot be obtained with a signed HIPAA compliant release, then consider using court action to collect them. I first file a specific motion for discovery requesting these specific type of records, identifying the school district name and address or school name and address. Once I have obtained a court order regarding this type of information, I will issue a subpoena duces tecum and attach the court order as an exhibit. When subpoenaing education/school records, you will need to include the individual’s full name, date of birth, social security number if available, the dates and periods of records you are seeking, and the name and address of the specific educational entity you are requesting the records from.

(3) Crime Stoppers Records The Defendant has a right to Crime Stoppers Information. As such you will need to file a discovery motion requesting this information and/or prepare a subpoena to the individual in possession of the applicable local crime stoppers information. This information can be subpoenaed and produced “in camera”. Under Thomas v. State, 837 S.W.2d 106 (Tex. Crim.

App. 1992), the defendant has a constitutional right to the production of crime stoppers information in the possession of the local Crime Stoppers program, the Crime Stoppers Advisory Council or the District Attorney’s office. Further, what is more interesting, under Crawford v. State, 892 S.W.2d 1 (Tex. Crim. App. 1994), any exculpatory information contained within a crime stoppers report is “Brady” material, and as such, there is no burden on the defendant under the Fourteenth Amendment to specifically request this material. This presents an interesting twist to the newly enacted amendments to Article 39.14 (Michael Morton Act), as the State has a continuing obligation to produce “Brady” material, which could potentially include Crime Stoppers information and records. Because of the potential “Brady” element involved, you may want to subpoena the requested information “in camera”, because at a minimum the court can then make a determination if the requested information contains “Brady” material. If the court denies you access to this information, I would request that it be sealed, and marked as an exhibit for appellate purposes. This way you can attempt to preserve error, and further insist that the court is now the gatekeeper of this information, and should it be deemed material at the time it is inspected or at any future stage of the trial, it must be released to the defendant for review.

See Generally, Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992). This presents an interesting dynamic at trial, because if the information is “Brady”, but initially withheld from the inspection of the defendant, I would argue that the release of this information during trial is a Brady violation, and request a mistrial, and subsequently argue that jeopardy has attached.Once you have started gathering any of these types of records via subpoena, and you may want to use these records in any form at trial, you must meet the requirements under the Texas Rules of Evidence 803 (6) – Business Records Exception, and the authentication requirements under Texas Rules of Evidence 902 (10), you will need to have the necessary affidavit completed and the records filed with the required notice being sent to the State or any other opposing party, at least 14 days prior to the commencement of trial.

Family Interviews Family interviews provide background information that the defendant may not be aware of, may be unwilling to share, or does not understand the importance of. It is common for parents and relatives to divulge concerns about mental or physical health, addiction, past trauma, victim and codefendant dynamics, and other important facts.

Engaging the Defendant Make the Defendant work. Defendants that are involved and engaged in the process are almost always better clients because they feel informed and have a sense of agency over their future. Beyond the feel-good benefits of this, the attorney can often get really valuable information that only the client knows. My office creates a bound packet for the DA for each defendant for whom we request a dismissal, pre-trial diversion, or significant departure from the initial offer. This packet will largely be created by the information that the defendant gathers himself at the beginning of the case through our Mitigation Checklist (see appendix).

In addition to having the defendant assist in gathering information, the pre-indictment phase of the case is an excellent time to create our own mitigation evidence. The prosecutor frequently will look favorably on a defendant who has already participated in the “rehabilitative” measures that would be ordered under a probation or pre-trial diversion contract. Those measures can include: 1.

2.

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5.

Community Service Victim Impact Panels and DWI education courses Substance abuse treatment Mental health treatment Anger management or Batterer’s intervention courses

Tex. Code Crim. Pro. 39.14 and Brady

With the passage of the Michael Morton Act criminal discovery in Texas greatly expanded for the benefit of the defendant, however, redaction and lack of disclosure is still a common problem. When drafting a 39.14 request the State is only obligated to turn over requested material so the request needs to be as broad as possible while still specifically naming the items described. This can result in long boilerplate motions that prosecutors begin to ignore and just send basic information to the defense. I recommend that if there is an item of interest that is important to your case that may be out of the ordinary that you file a specific 39.14 request for that item so that it is prominently before the DA and can be fully litigated is necessary. It is important for defense lawyers to continually press prosecutors for evidence and ensure that the discovery log is complete and that the Court has the final decision on the disclosure of evidence and not the State.

Regardless of 39.14, the prosecutor still has a constitutional duty under Brady to present evidence that would be favorable to the accused because it is either exculpatory or impeaching of a state witness.

In Kyles v. Whitley, the Court held that the government has an affirmative duty to search for, learn of,and disclose Brady material in the possession of the prosecution team, which includes prosecutors, police, and persons and agencies working on behalf of the government.

Brady includes not only the evidence possessed by prosecutors but also evidence possessed by law enforcement as well. The prosecution must disclose any favorable information in the possession of police agencies or other parts of the “prosecutorial team.”

Writs of Habeas Corpus Writs for bond reductions or removal of conditions of bond can be a good avenue to find out more about the case. Many times in the early parts of a case no District Attorney has been assigned and no one other than the defense attorney is working on the case. A writ ensures that the State has to put the case in someone’s hands and defense attorneys can use that to discuss the case with the DA, to learn more about the case, and to potentially receive pre-indictment discovery.

As a matter of course, I file a writ for every one of my clients that are in custody. When I transmit a copy of the writ to my client I include information about the process and request the client to send me back information regarding witnesses. Even in cases where it is very unlikely that the bond will be reduced because of the nature of the offense or the background of the defendant the process is still beneficial for developing a relationship with the client.

The writ process is generally advantageous over filing a motion to reduce bond in the magistrate court because the Court’s decision in a writ is reviewable in an immediate expedited appeal. Especially in circumstances where the issue is conditions of bond the access to an appeal

is important because there is no recourse under the law for the imposition of improper conditions other than through a writ. Frequently, access to a District Court judge will be more favorable to the defendant as well.

Examining trial Chapter 16 of the Tex. Code. Crim. Pro. sets out the rules for requesting and proceeding through an examining trial. A defendant arrested for a felony offense but not yet indicted for that offense may seek to have an examining trial before the magistrate to determine if probable cause exists to hold the defendant in jail or under bail. While examining trials are used most frequently as a method for obtaining release from jail, they are also available to those defendants that are out on bond. The reason for filing for an examining trial for an out of jail defendant can include the removal of bond conditions or as a discovery tool to bring witnesses to testify. And like the writ process, it can be used to have a DA assigned and bring early attention to a case that should be dismissed.

Using Experts Expert assistance and expert witnesses have become a fundamental part of modern trial practice. In almost every trial the State is going to be bringing a expert in the form of the officer.

In a war of credibility in front of the jury it is extremely important that we meet juror’s expectations and provide our own experts.

The value of an expert does not extend only to the trial. Mitigation specialists, investigators, canine experts, medical experts, and others can be an integral part of ensuring that a case never makes it to trial by way of dismissals and favorable plea bargains.

Ake Established that an indigent defendant has a right to a court-appointed expert under certain circumstances. Ake v. Oklahoma, 470 U.S 68, 105 S.Ct. 1087 (1985). In Taylor v. State, the Texas Court of Criminal Appeals, in following the precedent established in Ake, held that the defendant is entitled to independent expert assistance, not one who is required to report to the State or the court. Taylor v. State, 939 S.W. 2d 148 (Tex. Crim. App. 1996). As previously mentioned above, defense counsel’s failure to investigate available facts or a basis of the client’s mitigating evidence, can be held as ineffective assistance of counsel. Ex Parte Gonzales at 391.

More specifically, the Court reasoned that in determining whether or not counsel conducted a reasonable investigation, the reviewing court must initially determine if a reasonable investigation would uncovered the available mitigation evidence. See Id.

Under 39.14(b) either party may request that the opposing party’s expert witnesses be disclosed 30 days prior to jury selection. The Court may also order that the disclosure be made sooner.

FRAMING THE CLIENT’S STORY The purpose of the pretrial investigation is to find the emotional center of the case that a prosecutor or juror can relate with. Our jurors may not be able to understand burglarizing a house, but they may be able to relate to common human themes like abandonment, loss, hunger, etc.

In framing the client’s story we need to come up with a theory and a theme. Theory and theme are often treated as the same idea in preparing for a case but they are actually distinct in the way they relate to your client.

The theory of the case is the legal basis that allows you to win the case. i.e. the element that can’t be proved, the affirmative defense, or the lack of mens rea. We begin our trial outline (see appendix) by focusing on what the closing arguments should be. When we isolate how we can win, then we build the case around that theory.

The theme of the case is the emotional reason why you should win. i.e. it isn’t fair, they deserved it, or my motivations were clouded by trauma. Because we know that jurors don’t vote with their brains but with their hearts, the theme is the way that the defense makes the theory personal to the juror. It is the story.

Once we have established what the theme and theory of the case are we would carefully examine all of the evidence that we expect to be introduced into the trial and take note of those pieces of evidence that agree or conflict with the theme and theory and develop legal arguments for or against their admissibility.

Likewise, each of the questions that we ask on cross examination should be tied to the theme and theory. Questions that do not move us closer to our goal of proving the legal theory or of bringing the jury closer to the defendant should not be asked. Using limited questions to get to the heart of the issue will be much more effective than trying to knock out every single argument that the prosecutor has made against the defendant. Unless it affects the theme and the theory, leave it out!

When you can stay focused on the plan we create and thoroughly investigate the case, you have the best option of presenting a persuasive defense.

APPENDIX

CONFIDENTIAL - DO NOT DISCLOSE ALL INFORMATION PROVIDED IS FOR REPRESENTATION OF THE CASE AND IS FOR USE BY THIS OFFICE ONLY

CLIENT INFORMATION SHEET

IMPORTANT – DO NOT discuss your case with anyone except your lawyer. Phone calls and visitations are recorded and will be used against you. You have the right not to speak with Law Enforcement. Do not meet them without your lawyer present. Any information that you want to send to the District Attorney, Judge, or Law Enforcement should be sent to your lawyer first.

Name as Charged ___________________________________________________________________ First Middle Last Aliases (nickname, street name, or other names you have used_________________________________________ Home Address ______________________________________________________________________________ Home Phone _________________________________ Mobile Phone___________________________________ Email Address _______________________________________________________________________________ Age ______________ Birthdate ________________________ Birthplace ________________________________ Social Security Number ________________________________________________________________________ Driver's License Number _______________________________________________________________________ Marital Status ________________________________________________________________________________ Name of Spouse/Significant Other _________________________________________________________________

EMPLOYMENT Employer’s Name ______________________________________________________________________________ Employer Address ______________________________________________________________________________ Employer’s Phone No. ____________________________ Your position: _____________________________________

PERSONS WE CAN CONTACT IF WE CAN’T REACH YOU - PLEASE PROVIDE TWO FIRST CONTACT: Name _____________________________________________________________________________________ Address ___________________________________________________________________________________ Phone No. __________________________________ Mobile No. ______________________________________ Business Phone: ______________________________________________________________________________ Relationship___________________________________________________________________________________ SECOND CONTACT: Name _____________________________________________________________________________________ Address ___________________________________________________________________________________ Phone No. __________________________________ Mobile No. ______________________________________ Business Phone: ______________________________________________________________________________ Relationship___________________________________________________________________________________

WITNESSES (IF NECESSARY) 1. Name ________________________________________________________________________________ Address_______________________________________________________________________________ Phone_____________________________________Occupation__________________________________ 2. Name ________________________________________________________________________________ Address_______________________________________________________________________________ Phone_____________________________________Occupation__________________________________ 3. Name ________________________________________________________________________________ Address_______________________________________________________________________________ Phone_____________________________________Occupation__________________________________

Did you make a statement to the Police?

If yes, was it written, recorded or typed?

Yes

No

CRIMINAL HISTORY Felony Convictions?

Yes

No

If yes, what was the offense and sentence? _______________________________________________________ ___________________________________________________________________________________________ ___________________________________________________________________________________________ Misdemeanor Convictions?

Yes

No

If yes, what was the offense and sentence? _______________________________________________________ ___________________________________________________________________________________________ ___________________________________________________________________________________________

MEDICAL HISTORY Do you have any physical disabilities?

Yes

No

If yes, please describe. _________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________

Are you taking any prescription medications?

Yes

No

If yes, please describe. _________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ Have you ever been treated for mental illness? Yes

No

If yes, please describe. _________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________

Do you have any substance abuse problems?

Yes

No

If yes, please describe. _________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________

PLEASE GIVE A DETAILED EXPLANATION OF YOUR CASE/CHARGES:

Mitigation Packet Checklist Educational Information and Community Involvement Diplomas and Degrees Transcripts and Grade Reports Letters of Recommendation Community Service Church Involvement Certifications Resume

Military Documents DD-214

Substance Abuse UA or Hair Follicle Test Results Marijuana Class Certificate Inpatient/Outpatient Certificate Victim Impact Panel Alcohol Awareness Course AA/NA Sign in Sheet Substance abuse evaluation

Employment Information Letterhead or letter from employer Documents Showing Current & Past Employment

Classes CCT

Medical Evaluation with Records of physical disabilities Records of mental illness treatment List of prescribed medications (pharmacy records) Psychological Evaluation - Helen Farabee or private doctor Signed releases for records

Miscellaneous Family Photographs

Trial Outline Client name:

Legal Theory of case:

Theme(s): (short & packs punch)

Closing points: (tell a story/rule of three)

Opening points: (tell a story + rule of three)

Exhibit List:

Checklist: Jury Instructions/judge Exhibits and foundation Examinations - Evidence proof examination!

Elements of Action Verdict Form Credibility Likability Persuasion

State’s Witness: Questions

Answers (What you want from this witness)

Part I

Part II

Part III

Do the facts (answers) further your ball? Do the questions elicit the answers/facts? End Strong!

State’s Witness: Questions

Answers (What you want from this witness)

Part I

Part II

Part III

Do the facts (answers) further your ball? Do the questions elicit the answers/facts? End Strong!

State’s Witness: Questions

Answers (What you want from this witness)

Part I

Part II

Part III

Do the facts (answers) further your ball? Do the questions elicit the answers/facts? End Strong!

Defense Witness: Questions

Answers (What you want from this witness)

Part I

Part II

Part III

Do the facts (answers) further your ball? Do the questions elicit the answers/facts? End Strong!

Defense Witness: Questions

Answers (What you want from this witness)

Part I

Part II

Part III

Do the facts (answers) further your ball? Do the questions elicit the answers/facts? End Strong!