40th Annual Prairie Dog Lawyers Co-Sponsored with LCDLA by TCDLA

Criminal Defense Lawyers Project & Lubbock Criminal Defense Lawyers Association Present

40th Annual

Prairie Dog Course Directors Kim Brown, Matt Morrow & Chris Wanner

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 6808 HILL MEADOW DR., AUSTIN, TEXAS 78736

Texas Criminal Defense Lawyers Association

40th Annual Prairie Dog Lawyers Co-Sponsored with LCDLA Table of Contents

Speaker

Topic

January 14-15, 2021 Mark Thiessen Gretchen Sween

DWI Updates and Developments SCOTUSâ&#x20AC;&#x2122;s Andrus v. Texas (2020): A Roadmap for Avoiding Ineffectiveness and Pursuing Zealous Advocacy

Chuck Lanehart

History of the Death Penalty

Tyrone Moncriffe

Developing A Trial Story : Using the Techniques of the Storyteller

Heather Barbieri

Trying the Sexual Assault Case

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

LIVESTREAM 40TH ANNUAL PRAIRIE DOG LAWYERS CO-SPONSORED WITH LCDLA SEMINAR INFORMATION Date January 14-15, 2021 Course Director Kim Brown, Matt Morrow and Chris Wanner Total CLE Hours 10.0 Ethics: .75 Thursday, January 14, 2021 Time CLE 8:20 am

Topic

Daily CLE Hours: 6.25 Ethics: .75 Speaker

Opening Remarks

Kim Brown

8:30 am

.75

DWI Updates and Developments

Mark Thiessen

9:15 am

.75

Modern Communication

Justin Kiechler

10:00 am

Break

10:15 am

.75

SCOTUS’s Andrus v. Texas (2020): A Roadmap for Avoiding Ineffectiveness and Pursuing Zealous Advocacy

Gretchen Sween

11:00 am

.75

History of the Death Penalty

Chuck Lanehart

11:45 am

Lunch Break

12:00 pm

1.0

Why We Do What We Do but Shouldn’t Do it on Zoom

Dick DeGuerin

1:00 pm

.75

Storytelling

Chris Adams

1:45 pm

.75

Cross Exam

Grant Scheiner

2:30 pm 2:45 pm

Break

.75 CCA Update ETHICS 3:30 pm Adjourn

Hon. David Newell

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

Topic

Daily CLE Hours: 3.75 Ethics: 0 Speaker

Opening Remarks

Matt Morrow and Chris Wanner

8:30 am

.75

Voir Dire/Opening Statements

Tyrone Moncriffe

9:15 am

.75

Trying the Sexual Assault Case

Heather Barbieri

10:00 am

Break

10:15 am

.75

Creativity in the Practice of Law

Randy Schaffer

11:00 am

.75

Technology in Law Practice

E.X. Martin

11:45 am 12:00 pm 12:45 pm

Lunch Break .75

Jury Selection in the current political climate.

Robert Hirschhorn

Adjourn

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

Texas Criminal Defense Lawyers Association

40th Annual Prairie Dog Lawyers Co-Sponsored with LCDLA January 14-15, 2021

Topic: DWI Updates and Developments Speaker:

Mark Thiessen 733 E 12th 1/2 St Houston, TX 77008 (713) 864-9000 Phone (713) 864-9006 Fax mark@thetexastrialattorney.com email www.thetexastrialattorney.com website

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

› Burg v. State, 592 S.W.3d 444 (Tex.Crim.App. 2020) › State v. Hodges, 595 S.W.3d 303 (Tex.App.-Amarillo, › › › › ›

2020) State v. Arellano, 600 S.W.3d 53 (Tex.Crim.App. 2020) State v. Colby, 604 S.W.3d 232 (Tex.App.-Austin 2020) Crider v. State, 607 S.W.3d 305 (Tex.Crim.App. 2020) Haggard v. State, No. PD-0635-19, 2020 Tex.Crim.App. LEXIS 1029 (Crim. App. Dec. 9, 2020) In re State ex rel. Ogg, Nos. 14-20-00451-CR, 14-2000452-CR, 14-20-00453-CR, 14-20-00454-CR, 2020 Tex. App. LEXIS 8434 (Tex. App. Oct. 27, 2020)

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Convicted of DWI >.15 by a jury 18 months probation w/ license suspension to run concurrent with the ALR suspension with Interlock. No objection to additional license suspension. Normally, 1st DWI probation=no DL susp Holding: A license-suspension by a trial court for DWI is not part of a sentence that can render a sentence "illegal" because it is a collateral consequence rather than a punishment LESSON: OBJECT!

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Affidavit for blood-draw was signed by Officer 1 at the direction of Officer 2 No one administered an oath to Officer 1 Holding: search warrant permitting a blood draw was void because it was founded on an unsworn affidavit Yet, we must leave to the Court of Criminal Appeals the decision whether to deviate from Clay and other of its edicts, such as “it is that act of swearing ... that is essential.” See Smith v. State, 207 S.W.3d 787, 792 (Tex. Crim. App. 2006).

ď&#x201A;&#x17E; ď&#x201A;&#x17E;

Magistrate signed warrant in illegible cursive Holding: Under the good-faith exception of Art. 38.23(b), a magistrate's illegible signature on a search warrant does not render it facially invalid. The good-faith exception applies if the record establishes that the officer acted in objective goodfaith reliance upon a warrant based upon a neutral magistrate's determination of the probable cause.

Police officer, Garza, did not come to a complete stop until he was beyond the stop sign and, in the intersection ď&#x201A;&#x17E; Defendant approached the intersection from the other side which did not have a stop sign, stopped in the intersection, backed up and flashed his lights to signal to Garza that he can go. Garza did not proceed, the Defendant did. Defendant stopped for stopping in intersection. ď&#x201A;&#x17E; Colby's actions were reasonable under the circumstances since Colby attempted to yield to a marked police vehicle. The trial court did not abuse its discretion in granting the Motion to Suppress ď&#x201A;&#x17E;

Officer obtains a blood search warrant authorizing the drawing of blood but not the subsequent chemical testing  The introduction of evidence of the result of the chemical testing of appellant's blood at his trial for driving while intoxicated was proper, although the warrant did not also expressly authorize the chemical testing of the blood  NEXT: Searching for drugs 

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Child sexual assault case DeVore was the nurse who performed the SANE examination and wrote down an account of what happened The Confrontation Clause was violated when the trial judge allowed the Sexual Assault Nurse Examiner (SANE), to testify against defendant from another state using a two-way video system no financial constraint or undue financial burden no important public policy, sufficient time and ability to subpoena the witness Confrontation Clause

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December 1, 2019 - evading arrest and assault. PTI Program in February of 2020 May 18, 2020 - misdemeanor assault and felony violation of a protective order Waive his right to a jury trial and proceed to a bench trial, because under the Texas Supreme Court's emergency orders regarding COVID-19, he cannot have a jury trial until August 1, 2020 The emergency order expressly allows the court in a criminal case to suspend all procedures prescribed by statute. The State has no constitutional right to a jury trial—that right belongs to the defendant. The State’s right to withhold consent to the defendant’s waiver of his constitutional right to a jury is statutory. The trial court’s application of the emergency order to suspend the consent requirement in Art. 1.13(a) is consistent with the plain language of the emergency order. Thus, the State has not established a clear legal right to the relief sought. DA has procedural not constitutional right to jury trial

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Anonymous Tip Traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated. The behavior described by the 911 caller, viewed from the standpoint of an objectively reasonable police officer, amounted to reasonable suspicion of drunk driving. Fact Intensive

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Anonymous Tip “swerving” The totality of these circumstances in evidence did not support the detention The 911 caller's report of swerving, without more description or evidence of its range, persistence, or danger, combined with a conclusory allegation of "possible" intoxication, without more facts underlying that conclusion (either factual or experiential), did not justify the temporary detention of appellee

Anonymous Tip  Drug case  “narcotics activity”  When a probable cause affidavit relies on hearsay information, the informer's veracity, reliability, and basis of information are highly relevant factors in determining whether probable cause exists 

Anonymous tip saying there was a male pushing around a female in the parking lot. The caller refused to give her name and insisted on remaining anonymous. The caller did not provide a license plate number, a make of car, or a description of the people involved except gender and number.  Within one minute of receiving the dispatch call, Officer Flores passed a maroon Honda four-door car with a male driver and a female passenger exiting the area. He turned around and followed the car.  No traffic violations/No community caretaking = NO REASONABLE SUSPICION 

Acting on an earlier telephoned report that defendant had been intoxicated when he assaulted his brother and left the scene driving a small, white pickup truck, defendant was stopped.  No traffic violations or signs of intoxication or distress when the officer stopped him.  Community Caretaking did not apply: officer's belief that defendant required aid was objectively unreasonable 

Testimony from Trooper stating Ford was following another car too closely was a conclusory statement that Ford was violating a traffic law and did not constitute reasonable suspicion for the stop ď&#x201A;&#x17E; i.e. following to close, swerving, failure to maintain single lane ď&#x201A;&#x17E;

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Failure to signal

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Two lanes merge into one is not a violation of Texas Transportation Code.

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Failure to signal

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Failing to signal exit from the freeway is not a violation under the plain language of Tex. Transp. Code Ann. § 545.104(a) (1999)

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Failure to signal

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right hand turn from a private parking lot

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signaling requirement did not apply to defendant's turn

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Wheeling/Operating

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engine was running, parked in his usual parking space behind the building where he worked; he did not have a foot on the brake and had not turned on the headlights; the car was in park; and the front seat was reclined.

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Wheeling/Operating

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Statement admitting driving is not corpus delicti to prove operating

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Warning: corroboration

Weaving ď&#x201A;&#x17E; tires drifted into an adjacent samedirection lane one time, by no more than a tire's width, there was no vehicle in the lane next to defendant, and the officer expressly stated that the movement of defendant's truck was not unsafe or dangerous. ď&#x201A;&#x17E;

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Spinning motion of defendant's tire after the traffic light turned green did not alone warrant the officer's suspicion that defendant was unlawfully exhibiting acceleration in violation of Tex. Transp. Code Ann. Â§ 545.420.

LIDAR ď&#x201A;&#x17E; For purposes of Tex. R. Evid. 702, the State failed to prove the reliability of a Light Detection and Ranging device technology on which the officer relied in finding that defendant had been speeding ď&#x201A;&#x17E;

Speeding (46/35), OAB, 2 whiskey drinks/ HGN-6/ refused WAT and OLS due to injuries/ refused alpha due to dyslexic/ refused PBT  NO: signs of intox driving/ slur speech/ stumble/sway/ produced TXDL/ pulled over safely and timely/ exit vehicle fine/ no BSE/ loss of M or P  NO PC to arrest 

Accident w/ SBI/ 4 “very tiny” tastings at winery/ WGE/ Confused about direction of travel prior to collision/ HGN-4/ refused WAT and OLS/ refused PBT  NO: odor of alcohol, stumble/ slur speech/ RBSGE  Improperly administer HGN  Thiessen and Danford 

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“Strong” odor alone is not enough

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Due to absence of articulable facts which could have reasonably raised suspicion that defendant had either impaired mental or physical faculties due to alcohol consumption, detention for investigation of public intoxication was unconstitutional.

Prolonged Detention  A seizure justified only by a policeobserved traffic violation thus became unlawful if prolonged beyond the time reasonably required to complete the mission of issuing a ticket.  7-8 min to wait for dog (SFST Officer) with no reasonable suspicion to continue detention 

ď&#x201A;&#x17E;

Detention occurred where officer shined patrol car's overhead lights in defendant's direction and officer ordered defendant to "come over here and talk to me," as reasonable person in defendant's shoes would not have felt free to leave or decline the officer's request.

VGN ď&#x201A;&#x17E; In DWI case, as no Texas court had determined scientific reliability of vertical gaze nystagmus (VGN) test and trial court did not engage in reliability determination, officer's testimony regarding VGN test and defendant's impairment was improper. ď&#x201A;&#x17E;

15 Minute Violation  37 TEX.ADMIN.CODE § 19.3(c)(1), (i)  While the commentary uses the term “subject observation period,” the current version of section 19.3(i) makes clear that direct observation is no longer necessary to ensure the validity or accuracy of the test result. The operator is required to remain in “the presence of the subject” for at least fifteen minutes prior to the test and exercise reasonable care to ensure that the subject does not place any substances in the mouth. 

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15 Minute Violation

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Breathalyzer test was not administered properly because of a violation of the fifteen-minute observation period

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Violation of Code and 38.23

Retrograde Extrapolation  Did not know 1st, last, weight, ate  “normal drinking patterns”  Lots of assumptions  State must show by clear and convincing evidence that expert's testimony was reliable. 

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State failed to prove by clear and convincing evidence that the expert's extrapolation was reliable, as she did not explain her calculations or the science with clarity, she could not identify few, if any, personal characteristics of defendant, and the only test was performed three-and-ahalf hours after the stop. Must know1st, Last, Time of Driving at least Carmen Roe!!!

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Swear to Blood Affidavit

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Must ACTUALLY swear to the affidavit with an oath.

Marijuana  Must quantify/ when ingested/ under the influence  No Kelly hearing to examine marijuana evidence as it related to intoxication  “Harmless error” (3 ways to show intox: alcohol, MJ or combo)  OBJECT! 

Xanax and Valium  Valium 2 2pm, no Xanax  No DRE  401 need doage/ time of ingestion/ and half life (and officer w medical knowledge)  403 Highly Prejudicial/ Mislead the Jury  Troy McKinney! 

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Lisinopril and Pyridoxine Ofc. Morrison – nursing drug handbook Not a DRE, did not consult a DRE WAT- “I am under the influence of my medication. It is making me drowsy” Follows Layton Kelly and 702/ not relevant nor reliable Cannot conclude with fair assurance testimony did not influence the jury or had but a slight effect

Texas Criminal Defense Lawyers Association

40th Annual Prairie Dog Lawyers Co-Sponsored with LCDLA January 14-15, 2021

Topic: SCOTUSâ&#x20AC;&#x2122;s Andrus v. Texas (2020): A Roadmap for Avoiding Ineffectiveness and Pursuing Zealous Advocacy Speaker:

Gretchen Sween PO Box 5083 Austin, TX 78763-5083 (214) 557-5779 Phone gsweenlaw@gmail.com email

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

ANDRUS V. TEXAS (2020):

A Roadmap for Avoiding Ineffectiveness and Pursuing Zealous Advocacy TCDLA Presentation, January 14,2021 Gretchen Sween, Ph.D., J.D

WHAT IS ANDRUS V. TEXAS?

Terence Andrus v. Texas, 590 U.S. __; 140 S.Ct. 1875 (2020) (per curiam).

PUSHED OUT OF THE HEADLINES (BOSTOCK V. CLAYTON COUNTY, GEORGIA)

THE WIN: PRESAGED BY OPENING PASSAGE

THE PROCEDURAL HISTORY  Appealed from CCA decision denying relief in initial state habeas; CCA refused to adopt trial court’s FFCL and rejected favorable recommendation for relief on IAC punishment‐ phase claim without explanation  QP to SCOTUS: Does the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fail to protect the Sixth Amendment right to a fair trial and the Fourteenth Amendment right to due process when, in death‐penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation?  Relisted or rescheduled over 20 times!  Result of cert grant: a GVR not a decision to review merits of QP  As with Moore v. Texas, 139 S.Ct. 666 (2019)

INEFFECTIVE ASSISTANCE: BASIC LAW

Strickland v. Washington, 466 U.S. 688 (1984): habeas applicant must establish two elements: (1)

(2)

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counsel’s representation was “deficient” because it “fell below an objective standard of reasonableness” judged under “prevailing professional norms;” and counsel’s deficient performance prejudiced the client. Id. at 694.

Note: Deficient performance assessed based on a national, not local standard

ANDRUS AUTHORITATIVE ON PARTICULAR KIND OF IAC CLAIM: FAILURE TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE

Seminal Cases re counsel’s duty to conduct thorough mitigation investigation and then make strategic decisions about what to present to the jury: 

Williams v. Taylor, 529 U.S. 362 (2000) .

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Wiggins v. Smith, 539 U.S. 510 (2003).

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Rompilla v. Beard, 545 U.S. 374 (2005).

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Porter v. McCollum, 558 U.S. 30, 41 (2009).

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Sears v. Upton, 561 U.S. 945 (2010) (per curiam). Andrus: first time in 10 years SCOTUS has offered guidance.

But see Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam) (just cumulative or new details minor); Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam) (crime highly aggravated, much of new mitigation just cumulative or would have opened the door).

INEFFECTIVENESS CHALLENGES HISTORICALLY The good/bad news….

BUT KEEP IN MIND: SBOT Guidelines and Standards for Texas Capital Counsel

BE A HERO: HONOR YOUR ETHICAL OBLIGATIONS

The foundation of the duty of loyalty is the obligation to avoid conflicts of interest and to take remedial actions when conflicts arise. See MODEL RULES PROF’L CONDUCT r. 1.7. “The defense lawyer facing an ineffective assistance of counsel claim should not regard the claim as a waiver of any privileges or obligations related to the former client.” Michael Mears, The Defense Attorney’s Ethical Response to Ineffective Assistance of Counsel Claims, 5 GA. B.J. 40, 44 (1999). Even Strickland v. Washington, 466 U.S. 668, 692 (1984) notes that a lawyer’s duty of loyalty is “perhaps the most basic of counsel’s duties.”

ANDRUS: THE HOLDING Trial counsel performed deficiently. SCOTUS view of counsel’s performance not difficult to grasp—found the habeas

proceeding had amassed considerable mitigating evidence that trial counsel had “not only neglected to present [but] failed even to look for,” and SCOTUS characterized that evidence as “abundant,” “simply vast,” “compelling,” “powerful,” “myriad,” previously “untapped,” and “a tidal wave.” Andrus, 140 S.Ct. at 1878, 1881, 1882, 1883, 1886.

ANDRUS: THE HOLDING Trial counsel performed deficiently. Specifically, the Supreme Court held trial counsel performed deficiently in several categorical ways:  “First, counsel performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence.”  “Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State’s aggravation case.”  “Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation.” Andrus, 140 S.Ct. at 1881-82.

ANDRUS: THE DIRECTIVE ON REMAND Need to assess prejudice.

The Standard is Tailored to the Jurisdiction:

Because a death sentence in Texas requires unanimous jury recommendation on at least two special issues, “prejudice here requires only ‘a reasonable probability that at least one juror would have struck a different balance’ regarding [defendant’s] ‘moral culpability[.]’” Andrus, 140 at 1886 (quoting Wiggins, 539 U.S. at 537-538 and citing Tex. Code Crim. Proc. Ann., Art. 37.071).

ANDRUS: THE DIRECTIVE ON REMAND Need to assess prejudice. The Standard ultimately about fundamental fairness: “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Strickland, 466 U.S. at 693-94. Requires merely “a probability sufficient to undermine confidence in the outcome,” id. at 694, a BOP less onerous even than preponderance of evidence. See Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990) (explaining that Strickland imposes “a lower burden of proof than the preponderance standard”).

ANDRUS: THE DIRECTIVE ON REMAND More about prejudice: Wiggins the leading case, but not the only template. SCOTUS made clear: cannot equate “what was sufficient in Wiggins with what is necessary to establish prejudice.” Andrus at 1887, n.6—and discusses Williams v. Taylor, 529 U.S. 362 (2000) (finding prejudice even though that case was decided under the highly deferential AEDPA standard). Wiggins: “As the Federal District Court found, the mitigating evidence in this case is stronger, and the State's evidence in support of the death penalty far weaker, than in Williams, where we found prejudice as the result of counsel's failure to investigate and present mitigating evidence. We thus conclude that the available mitigating evidence, taken as a whole, "might well have influenced the jury's appraisal" of Wiggins' moral culpability. Id., at 398.” Reversed and remanded.

HOW TO USE ANDRUS V. TEXAS

THE ANDRUS DEFICIENT PERFORMANCE ASSESSMENT: A REMINDER OF WHAT NOT TO DO SCOTUS plainly appalled by counsel’s non‐existent mitigation investigation but also highlighted many specific failings, e.g.: 

Presented no opening in guilt‐phase, rested right after State rested, promised to start “fighting” in punishment‐phase—then again waived opening statement;

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Put on “nominal” case in mitigation but “record leaves no doubt that counsel’s investigation to support that case was an empty exercise”

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Introduced “seemingly aggravating evidence” because did not prepare his witnesses

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“Failed to conduct any independent investigation of the State’s case in aggravation, despite ample opportunity to do so.”

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Threw client under the bus by, in essence, conceding that State had likely proven that Andrus was “a violent kind of guy”

THE ANDRUS FACTUAL RECITATIONS: A MEANS TO REVERSE‐ENGINEER WHAT TO DO What kinds of mitigation moved and/or outraged the Court? 

Contrast between portrait of mother presented at trial v. in habeas—single mom doing her best v. sold drugs, engaged in prostitution, neglected her 5 children

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Relatively minor crime (“served as a lookout while his friends robbed a woman”) that put him in custody of juvenile system that then brutalized and abused him

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Suicidal impulses, documented in juvenile records, “resurfaced” later when he was incarcerated pre‐trial

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Born “into a neighborhood of Houston, Texas known for frequent shootings, gang fights, and drug overdoses”

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Diagnosed w “affective psychosis” when only 10 or 11*

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No father figure; Andrus children exposed to a “parade” of dangerous men, one of whom “raped Andrus’ younger half sister when she was a child”*

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Andrus “assumed responsibility for his 4 siblings, including his older brother w special needs”—when Andrus 12—”cleaned for his siblings, put them to bed, cooked breakfast for them, made sure they got ready for school, helped them with their homework, and made them dinner.”

BIG TAKE‐AWAY IN TERMS OF ZEALOUS ADVOCACY?

*Never stop investigating.

THE ANDRUS PREJUDICE EXPLICATION: A MEANS TO EDUCATE LOWER COURTS At trial, invoke habeas boogey‐man to obtain the time and resources you are entitled to. In habeas, court will be required to revisit the trial and — 

To undertake a “weighty and record‐intensive analysis” Andrus, 140 S.Ct. at 1887.

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To “engage with the effect the additional mitigating evidence highlighted by [habeas applicant] would have had on the jury.” Id. at 1886.

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To “speculate” as to the effect of the new evidence’ on the trial evidence, ‘regardless of how much or little mitigation evidence was presented during the initial penalty phase.’” Id. at 1887 (quoting Sears, 561 U.S. at 956). Note: just need to find reasonable probability one juror would have struck a different balance!

ANYÂ QUESTIONS?

Texas Criminal Defense Lawyers Association

40th Annual Prairie Dog Lawyers Co-Sponsored with LCDLA January 14-15, 2021

Topic: History of the Death Penalty Speaker:

Chuck Lanehart Chappell, Lanehart & Stangl P.C. Lubbock, Texas (806) 765-7370 Phone (806) 535-2689 Fax chuck@lubbockcriminaldefense.com email www.lubbockcriminaldefense.com website

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

LAFITTE, LYNCHING AND ELECTROCUTION TO LETHAL INJECTION: THE SAD AND SORDID HISTORY OF TEXAS EXECUTIONS by Chuck Lanehart Chappell, Lanehart & Stangl P.C. Attorneys at Law Lubbock, Texas Prairie Dog Lawyers Advanced Criminal Law Seminar Lubbock, Texas January 14, 2021

Execution by Hanging in Texas

Lafayette Jean Lafitte

Execution by Hanging in Texas

November 6, 1819 First Recorded Texas Execution George William Brown, Piracy Galveston

Source: Death Penalty Information Center

Execution by Hanging in Texas • Capital Crimes (1836): – Robbery of a Mail Carrier (2 nd offense or with deadly weapon) – Treason, Murder, Arson, Rape, Robbery, Burglary, Forgery, Piracy – Theft of a Slave – Counterfeiting coin – Accessory to Murder, Arson, Rape, Robbery, Burglary – Perjury in a capital trial leading to execution – Assisting escape of a convicted capital offender Source: The Act of 1836-Republic of Texas

Execution by Hanging in Texas • 1857 Capital Crimes committed by slaves: – Murder – Insurrection – Arson – Rape Source: Penal Code of the State of Texas−1857

Execution by Hanging in Texas • 1857 Capital Crimes committed by free white persons and freed persons of color: – Treason – Perjury in capital trial leading to execution – Murder Source: Penal Code of the State of Texas−1857

Execution by Hanging in Texas • •

1859 Capital Crimes committed by free whites: Treason, Perjury in a Capital Case, Murder. 1859 Capital Crimes committed by slaves, freed persons of color: – Murder – Insurrection – Arson – Rape/Attempted Rape of a free white woman – Robbery committed on a free white person – Assault with Intent to Murder a free white person – Assault with a Deadly Weapon on a free white person Source: Digest of the General Statute Laws of the State of Texas (1859)

Execution by Hanging in Texas

Public Hanging of John Quincy Adams Crews October 18, 1895 Denton County

Execution by Hanging in Texas

Gallows in Brownsville, 1916

Execution by Hanging in Texas

Did you ever see a hangman tie a hangknot? Did you ever see a hangman tie a hangknot? I've seen it many a time and he winds, he winds, After thirteen times he's got a hangknot. −“Hangknot, Slipknot” by Woody Guthrie

Execution by Hanging in Texas • Between 1819 and 1923, 390 people were executed by hanging in the county where the trial took place. (Four more died by firing squad.) • Of the 394, 228 were black (58%), 99 were white (25%), 49 were Hispanic or Native American (12%), and the race of the remaining 18 is unknown. • Three women were hanged, all for murder. Source: Death Penalty Information Center

Execution by Hanging in Texas • Horse Theft Was Never a Capital Crime –1836: 39 lashes and branding with “T” –1857: 2-7 years in prison –1881: 5-15 years in prison –1925: 5-15 years in prison –2015: 2-10 years in prison/$10,000 fine (valued less than $100,000/single transaction)

Execution by Hanging in Texas

The Hanging of G.R. Miller Clarendon, 1910

Execution by Hanging in Texas â&#x20AC;˘ On July 30, 1923, Roy Mitchell was the last Texan legally executed by hanging in public. â&#x20AC;˘ A month later, Nathan Lee became the last man hanged in Texas, though the hanging was not carried out in public.

Source: Death Penalty Information Center

Lynching in Texas

The Great Hanging at Gainesville

Lynching in Texas • Between 1885 and 1942, lynching was more common than legal execution in Texas. • At least 470 people were lynched during this time period (vs. 466 legally executed), including 339 blacks (72%), 77 whites (16%), 53 Hispanic (11%) and one Native American. • Ten women were lynched, including Nancy Hill, hung for horse theft in Montague County, 1873. • Robert Perry was lynched for horse theft on February 25, 1913, in Harrison County. Source: “Lynching in Texas” by David L. Chapman

Lynching in Texas • Most lynchings were for Murder and Rape, but also: – Incendiarism – Train Wrecking – Writing a Letter to a White Woman – Entering a White Woman’s Room – Elopement – Horse Theft – Being Troublesome Source: “Lynching in Texas” by David L. Chapman

Lynching in Texas

The Lynching of Bert Smith Goose Creek, 1917

Lynching in Texas

The Lynching of Henry Smith Paris, 1893

Lynching in Texas

The Lynching of Henry Smith Paris, 1893

Lynching in Texas

The Lynching of Robert Hilliard Temple, 1895

Lynching in Texas

The Lynching of Robert Hilliard Temple, 1895

Lynching in Texas

The Lynching of Robert Hilliard Temple, 1895

Lynching in Texas

The Lynching of Ted Smith Greenville, 1908

Lynching in Texas

The Lynching of Ted Smith Greenville, 1908

Lynching in Texas

The Lynching of Ted Smith Greenville, 1908

Lynching in Texas

The Lynching of Ted Smith Greenville, 1908

Lynching in Texas

The Lynching of Holland Brooks Dallas, 1910 Source: Dowdy, Christopher J. (2015). Dallas Untold. (Blog)

Lynching in Texas

The Lynching of Holland Brooks Dallas, 1910 Source: Dowdy, Christopher J. (2015). Dallas Untold. (Blog)

Lynching in Texas

The Waco Horror, 1916

Lynching in Texas

The Waco Horror, 1916

Lynching in Texas

The Waco Horror, 1916

Lynching in Texas

The Waco Horror, 1916

Lynching in Texas

The Lynching of George Hughes Sherman, 1930

Lynching in Texas

The Lynching of the Kelly Family Wheeler County, 1887

Execution by Electrocution in Texas

Death Row, Huntsville (1928-1965) “Walls Unit”

Execution by Electrocution in Texas

“Old Sparky”

Execution by Electrocution in Texas • 361 men (no women) died in the Texas electric chair between 1924 and 1964. • Of the 361, 229 were black (63%), 108 were white (30%), 23 were Hispanic (6%) and one was Native American. • Offenses included Murder, Robbery, Rape and Kidnapping/Murder. Source: Texas Department of Criminal Justice

Execution by Electrocution in Texas • Panhandle/South Plains offenders electrocuted between 1923 and 1964: 18 men. • Crosby – 3. • Lynn – 2. • Potter – 2. • Swisher – 2. • One each: Dawson, Donley, Floyd, Gray, Kent, Lamb, Lubbock, Parmer, Roberts. • 67 per cent White, 33 per cent Black. Source: Texas Department of Criminal Justice

Death Penalty Moratorium 1964-1976

Texas Execution by Lethal Injection 1976-present

Texas Execution by Lethal Injection 1976-present • Between 1982 and the present, Texas has lethally injected 570 people, including six women. • Of the 570, 254 were white (44 %), 205 were black (36 %), 109 were Hispanic (19 %), one was Asian and one was Pacific Islander. • All were convicted of murder with special circumstances. Source: Texas Department of Criminal Justice

Texas Execution by Lethal Injection 1976-present • Panhandle/South Plains offenders executed by lethal injection between 1976-present: 26 men. • Potter County – 10. • Lubbock County – 10. • Hale County – 2. • Randall County – 2. • One each: Bailey, Scurry, Dawson • 59 per cent White, 26 per cent Hispanic, 15 per cent Black. Source: Texas Department of Criminal Justice

Texas Execution by Lethal Injection 1976-present

Polunsky Unit, Polk County Texas Male Death Row

Texas Execution by Lethal Injection 1976-present • Currently on Texas Death Row: 210 Offenders, including 93 blacks (44%), 57 whites (27%), 54 Hispanics (25.7%) and 6 Asian/other. • 6 women are currently on Death Row.

Source: Texas Department of Criminal Justice

Everything is Bigger in Texas (01/17/1977 to 05/19/2020)

Source: Death Penalty Information Center

Executions per State 01/1977 to 05/2020

Source: Death Penalty Information Center

Race and Executions in Texas

Texas Racial Population Percentages 1850-2000

Source: U.S. Census

Death Row Inmates Not Executed

• Since 1976, some 329 Texas Death Row Inmates were not executed, including: • • • • •

177 whose sentences were reduced on appeal. At least 63 whose sentences were commuted.* 35 who died of suicide/natural causes/killed/murdered. More than a dozen whose cases were dismissed following appeals or acquitted on retrial. 2 currently waiting on new punishment hearing.

*In 2005, the U.S. Supreme Court (5-4) outlawed execution of people who were under the age of 18 at the time of their crimes. Roper vs. Simmons. Those on death row who qualified had their sentences commuted to life. Source: Texas Department of Criminal Justice

Texas Death Row Exonerations • Since 1976, 13 men have been exonerated after being convicted and sentenced to death (1.5%). • Of the 13, only three were exonerated by DNA evidence. • Nationally, faulty eyewitness identification is the leading reason for exoneration (70% in DNA cases). • In Texas, the leading reasons for exoneration are false accusations (9); prosecutorial misconduct (7); and ineffective assistance of counsel (3). Sources: Death Penalty Information Center and the Innocence Project

Federal Death Penalty • The Crimes Act of 1790: first capital statute. • From 1790 to 1950, there were 327 Federal, 271 Territorial and 40 Indian Tribunal executions. • Between 1950 and 1963, 13 people were executed by the feds. (None for Texas crimes.) • Only three federal executions between 1976 and July of this year. Two were from Texas.

Federal Death Penalty

Source: Death Penalty Information Center

Recent Decline of Texas Death Sentences • •

• •

Death sentences have remained in the single digits for the past five years. In 2019, Texas juries imposed four new death sentences. Four other cases in which prosecutors sought the death penalty in 2019 resulted in sentences of life in prison without the possibility of parole after jury deliberations. Prosecutors took the death penalty off the table in nearly a dozen other capital cases in 2019, as well. To date in 2020, juries in Texas have sentenced two men to death, one in Collin County and one in Harris County. Source: Texas Coalition Against Death Penalty

Recent Decline of Texas Death Sentences â&#x20AC;˘ Life without parole TDCJ inmates since LWOP has been an option:

2015: 765 2014: 683 2013: 581 2012: 485 2011: 382

2010: 290 2009: 203 2008: 121 2007: 49 2006: 4

Source: Texas Department of Criminal Justice

United States Supreme Court Recent Death Penalty Cases

Last Meals John Wayne Gacy â&#x20AC;&#x201C; May 10, 1994 (Illinois)

Source: The Huffington Post

Last Meals Ronnie Threadgill â&#x20AC;&#x201C; April 17, 2013 (Texas)

Source: The Huffington Post

Famous Last Words “Let’s get this show on the road. One more thing, Viva Mexico, Viva Mexico.”

Humberto Leal Source: Texas Department of Criminal Justice

Famous Last Words “Where's my stunt double when you need one?”

Vincent Gutierrez Source: Texas Department of Criminal Justice

THE END

Texas Criminal Defense Lawyers Association

40TH ANNUAL PRAIRIE DOG LAWYERS COSPONSORED WITH LCDLA January 14, 2021

Topic: Developing A Trial Story : Using the Techniques of the Storyteller

Speaker:

Tyrone Moncriffe Tyrone C. Moncriffe & Associates 1001 Texas St Ste 720 Houston, TX 77002 (713) 224-6628 Phone (713) 224-6475 Fax tyronemoncriffe@yahoo.com email www.tyronemoncriffe.com website

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

DEVELOPING A TRIAL STORY USING THE TECHNIQUES OF THE STORYTELLER

I realize quite early in my practice, that I was talking to jurors, but I was not talking with them. I asked myself one question when I first started practicing law; why were some trial lawyers more effective in the courtroom than others? But that simple question lead me on a journey or quest for an answer. The answer turned out to be as simple as the question; the better trial lawyers were those who were master storytellers. Why were the storytellers the better trial lawyers? Why were stories so impactful? It turns out that the answer to those questions were not so simple. The answer to those questions was like asking someone to describe how it feels to be in love or describe the feeling you get if you saw the sun rise over ice capped mountains or that your child was named the valedictorian of his or her high school class. You can feel it; but you cannot describe it. There are parts of my presentation; I must admit that cannot be described, but I know that lawyers are trained to analyze. This paper is my attempt to analyze the methods of the master storyteller’s and how we can use those methods in our presentations. Without a doubt, one of the most important inventions of western civilization was Johannes Gutenberg’s Press. The mass production of the bible allowed people to read for themselves, and thus stimulated the greatest power in the world, according to Einstein, the human imagination. The use of words and how they stir the imagination is the real theme of this paper. Storytelling is a critical tool for trial lawyers and it’s the use of this tool that’s critical. I’ve traced the use of words by history’s master storytellers. In an attempt to see how we as trial lawyers can use words, to create drama, to set scenes, connect viscerally with jurors, and place jurors in a trance state. How can we tell our clients story better? Every trial lawyer knows the importance of primacy and recency, what a jury first hears and last hears are critical to persuasion. Let’s analyze how some of the master storytellers use primacy to set scenes.

Let’s analyze the opening words of history’s greatest stories to see how scenes are set immediately: “…He has successfully avoided meeting his landlady on the staircase. His garret was under the roof of a high, five stored house, and was more like a cupboard than a room. The landlady, who provided him with garret, dinners, and attendance lived on the floor below, and every time he went out he was obliged to pass her kitchen, the door of which invariably stood open. And each time he passed, the young man had a sick, frightened feeling, which made him scowl and feel ashamed. He was hopelessly in debt to his landlady and was afraid of meeting here.” Fyodor Dostoevsky, Crime and Punishment, 1866 The gripping opening of Edgar Allan Poe in The Tell‐Tale Heart: “True! ‐‐Nervous ‐‐ very, very dreadfully nervous I had been and am! But why will you say that I am mad? The disease had sharpened my senses ‐‐‐ not dulled them. Above all was the sense of hearing acute. I heard all things in the heavens and earth. I heard many things in hell. How, then am I mad. Hearken! And observe how healthily ‐‐‐ how calmly I can tell you the whole story.” Edgar Allan Poe, The Tell‐Tale Heart, 1843 “It was the best of times, it as the worst of times, it was the age of wisdom, it was the age of foolishness it was the epoch of belief, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way ‐‐‐ in short, the period was so like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree comparison only. “ Charles Dickens, A Tale of Two Cities, 1859

Ernest Hemingway inexorably pulls you into the life of Robert Cohn in The Sun Also Rises with short pointed sentences. “Robert Cohn was once middleweight boxing champion of Princeton. Do not think that I am very much impressed by that as a boxing title, but it meant a lot to Cohn. He cared noting for boxing in fact he disliked it, but he learned it painfully and thoroughly to counteract the feeling of inferiority and shyness he had felt on being treated as a Jew at Princeton. He was really very fast. His nose permanently flattened. In his last year at Princeton he read too much and took to wearing spectacles. I never met anyone of his class who remembered him. They did not even remember that he was middleweight boxing champion.” Ernest Hemingway The Sun Also Rises, 1926 “I sent one boy to the gas chamber at Huntsville. One and only one. My arrest and my testimony, I went up there and visited him two or three times. Three times. The last time was the day of his execution. I didn’t have to go but I did. I sure didn’t want to. He’d killed a fourteen year old girl and I can tell you right know I never did have no great desire to visit with him let alone go to his execution but I done it. The papers said it was a crime of passion and he told me there wasn’t no passion to it… he told me that he had been planning to kill somebody for about as long as he could remember. Said that if they turned him out he’d do it again. Said he knew he was goin to hell… I watched them strap him into the seat and shut the door. He might of looked a bit nervous about it but that was about all. I really believe that he knew he was goin to be in hell in fifteen minutes. What do you say to a man that by his own admission has no soul?” Cormac McCarthy No Country for Old Men, 2005 Ted Sorenson the brilliant advisor and speech writer for John Kennedy made an observation of the 1960 election between Kennedy and Nixon. He said this is the first time in American history were images became more important than words. These authors used words to create riveting images: “A huge red transport truck stood in front of the little roadside restaurant. The vertical exhaust pipe muttered softly, and an almost invisibly haze of steel – blue smoke hovered over its end. It was a new truck, shining red, and in twelve inch letters on its side Oklahoma City Transport Company. Its double tires were new and a brass padlock stood straight out from the hasp on the big back doors. Inside the screened restaurant a radio played quite dance music turned low the way it is when no one is listening. A small outlet fan turned silently in its circular hole over the entrance, and flies bussed excitedly

about the doors and windows, butting the screens. Inside, one man, the truck driver, sat on a stool and rested his elbows on the counter and looked over his coffee at the lean and lovely waitress. He talked the smart listless language of the roadside to her. “I seen him about three months ago. He had a operation cut somethin out. I forgot what.” And she ‐‐‐ “doesn’t seem no longer ago than a week I seen him myself. Looked fine then. He’s a nice sort of a guy when he ain’t stinko” now and then the flies roared softly at the screen door.” John Steinbeck The Grapes of Wrath, 1939 Upton Sinclair uses descriptive words to create images that turn your stomach in The Jungle as he illustrates of how sausages were made in the early 20th century. “There would be meat stored in great piles in rooms; and the water from leaky roofs would drip over it, and thousands of rats would race about on it. It was too dark in these storage places to see well, but a man could run his hand over piles of meat and sweep off handfuls of the dried dung of rats. These rats were nuisances and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together. This is no fairy story and no joke; the meat would be shoveled into carts, and the man who did the shoveling would not trouble to lift out a rat even when he saw one ‐‐‐ there were things that went into the sausage in comparison with which a poisoned rat was a tidbit. There was no place for the men to wash their hands before they ate their dinner, and so they made a practice of washing them in the water that was to be ladled into the sausage. There were the butt ends of smoked meat, and the scraps of corned beef, and all the odds and ends of the waste of the plants that would be dumped into old barrels in the cellar and left there…some of it they would make into smoked sausage ‐‐‐ but as the smoking took time, and was therefore expensive they would call upon their chemistry department, and preserve it with borax and color it with gelatin to make it brown. All of their sausage came out of the same bowl, but when they came to wrap it they would stamp some of it “special” and for this they would charge two cents more a pound.” Upton Sinclair The Jungle, 1906 With words Claude Brown describes the horrors of heroin as it invades Harlem in Manchild in the Promised Land. Heroin had just about taken over Harlem. It seemed to be a kind of plaque. Every time I went uptown, somebody else was hooked, somebody else was strung out. People talked about them as if they were dead. You’d ask about an old friend and they’d say “Oh well, he strung out.” It wasn’t just a comment of an answer to question. It was a eulogy for someone. He was just dead, though. At that time, I didn’t know anybody who had kicked it. Heroin had been the thing in Harlem for about five years and I don’t think anybody knew anyone who had kicked it. They knew a lot of guys who were going away getting cures, and coming back, but never kicking it. Cats were even going into the army or to jail, coming back, and getting

strung out again. I guess this was why everybody felt that when somebody was strung out on drugs, he was through. It was almost the same as saying he was dying. And a lot of cats were dying.” Claude Brown Manchild in the Promised Land, 1965 In Cold Blood by Truman Capote should be a must read for every trial lawyer. It is the first nonfiction story written in narrative structure. His funeral scene is poignant and moving: “The four coffins, which quite filled the small, flower – crowded parlor, were to be sealed at the funeral services ‐‐‐ very understandably, for despite the care taken with appearances of the victims, the effect achieved was disquieting. Nancy wore her dress over cherry – red velvet, her brother a bright plaid shirt; the parents were more sedately attired Mr. Clutter in navy‐blue flannel his wife in navy‐blue crepe; and it was this especially that lent the scene an awful aura the head of each was completely encased in cotton, a swollen cocoon. Twice the size of an ordinary blown‐up balloon and the cotton because it had been sprayed with a glossy substance twinkled like Christmas tree snow.” Truman Capote In Cold Blood, 1966 How do the great artists use the concept of recency in their writings and what can we learn as trial lawyers? Let’s examine some of the legendary stories: “She threw out hands to him palms up, in the age old gesture of appeal and her heart, again, was in her face. “No”, she cried “all I know is that you do not love me and you are going away! Oh, my darling, if you go, what shall I do?” …“Scarlett, I was never one to patiently pick up broken fragments and glue them together and tell myself that the mended whole was as good as new. What is broken is broken – and I’d rather remember it as it was at its best than mend it and see the broken places as long as I lived. Perhaps, if I were younger – “he sighed”. But I’m too old to believe in such sentimentalities as clean slates and starting over… I couldn’t live with you and lie to you and I certainly couldn’t lie to myself. I can’t even lie to you now. I wish I could care what you do or where you go, but I can’t. He drew a short breath and said light but softly “my dear, I don’t give a damn.” Margaret Mitchell Gone with the Wind, 1936 Harper Lee’s To Kill a Mockingbird should be required reading for every criminal defense lawyer. Atticus Finch speaks eloquently about equality in his final summation: “One more thing gentleman, before I quit, Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the executive branch in Washington are fond of hurling at us. We know all men are not created equal in the

sense some people would have us believe – some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others – some people are born gifted beyond the normal scope of most men. But there is one way in this country in which all men are created equal there is one human institution that makes a pauper equal of a Rockefeller the stupid man the equal of Einstein, and the ignorant man equal of any college president, that institution, gentleman, is a court.” Harper Lee To Kill a Mockingbird, 1960 Jim Perdue says in I Remember Atticus, “The moral of a trial story is about empowerment. Inspiring the jury to do something for someone who is weak, vulnerably, and not able to make things right without the jury’s help. Legal education denies emotion; students are taught the cold logic of inductive reasoning. But inductive analysis is a faulty road map for the courtroom. Ordinary citizens resolve conflicts by deciding first what seems right and the making the facts fit their sense of justice.” Jim Perdue I Remember Atticus, 2004 Trial lawyers have one of the most unusual occupations of mankind. We tell stories to 12 people who we have never seen in our lives about a past event that they have absolutely no personal interest in. We can use riveting words to capture our jurors’ imaginations in opening statements, paint pictures in direct and cross‐examination, and use the concept of recency in Every trial lawyer should take an acting final summations course as horrible as this sounds to logical thinkers. We need to learn how to use What do we do with the story after we have space and create rhythm in our our techniques and story line in order presentation, project our voices, create though? After we have identified the tension or drama with pauses and gestures, universal theme in our client’s story, one developed stage presence, and learn how to that jurors can identify with, what next? tell a story to create a trance state in your audience. Its one thing to read the words of great The techniques of storytelling are so artist, but it’s quite another to transfer powerful because they bring motion and those words, with effect, to a live audience. A trial lawyer must be able to stand before Suggested Reading a live audience and tell a compelling story. We must develop skills of the writer and • Black Water – Joyce C. Oates actor. • In Cold Blood – Truman Capote • The Grapes of Wrath – John Steinbeck

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To Kill a Mockingbird – Harper Lee

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A Tale of Two Cities – Charles Dickens

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Moby Dick – Herman Melville

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The Sun Also Rises – Ernest Hemingway

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Animal Farm – George Orwell

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No Country for Old Men – Cormac McCarty

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Guns of August – Barbara Tuchman

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The Jungle – Upton Sinclair

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Native Son ‐ Richard Wright

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Fire the Next Time – James Baldwin

Manchild in The Promise Land – Claude Brown

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Crime and Punishment – Fyodor Dostoevsky

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Gone with the Wind – Margaret Mitchell

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I Remember Atticus – Jim Perdue

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The Tell ‐Tale Heart – Edgar Allen Poe

emotion to the courtroom. The key to storytelling is telling your story in the present tense; as though it is happening now. The emotional state will transfer you and your audience to that critical time and place. The story takes you and your jury to another world; a world and an experience that you and your jury will share together. It begins with doing something that’s counterintuitive for the trial lawyer, reading literature.

A GREAT TRIAL LAWYER W. MARK LANIER TELLS US WHY AND HOW WE SHOULD TELL STORIES WHY TELL STORIES? In short, people learn better with stories. Why is that so? A number of reasons: Stories are attention getters. People get involved in stories and pay better attention to stories as opposed to factual dissertations. People remember stories. If you ever take a memory course, the fundamental method for memorization is to take one or more facts and turn them into a story. Stories plug into the mind much better than facts. Stories by‐pass defense mechanisms. Defense mechanisms, we are told, are psychic mechanisms we use to resist feeling guilt, anxious, and a variety of other unpleasant emotions. It may be easier to think of it in terms of if you or someone close to you “get defensive”. Think about what triggers defensiveness in you. For example, if someone says “I think you are a bad trial attorney because you (blank),” you start, at least in your mind, planning a defense to the accusation (i.e., “I’m not a bad attorney because (blank)”). What a story or metaphor accomplishes is an end run around the defense mechanism. Like an Aesop fable, “Once upon a time, there were two bunnies. A fast one and

one who was a good jumper”. The person hearing the metaphor does not initially know where the identification attaches. Therefore, the message is digested before the identification and or defense happens. Here is another example that may help clarify this point. If a therapist were to say to a couple referred to her for marital problems, “It’s useless to blame one another in a marital tiff,” then one person in the couple will think of a time the other was clearly wrong. Ammunition is stockpiled for a strong defense. He or she will surely be focused on the particulars of their problems and miss the point. Instead, you could say. When you mix vinegar and baking soda, you will get bubbles. It is useless to dwell on who’s at fault – the baking soda or the vinegar. Neither person in the couple can immediately identify with the vinegar or baking soda; so, the point about the futility of blame is digested rather than diverted by a defense mechanism. People identify with stories. When most folks hear a story, they grab a hold of some aspects of the story and begin to cast themselves into the story/experience. Empathy, understanding, anger – the full panoply of emotions can be transferred from a story into a personalized experience for the listener. Stories simplify difficult concepts and issues. Use stories to “un‐complicate” things. Stories make it possible to easily understand complex rules of law and legal positions. Jurors, after all, have not been to law school. They want to apply what they know about right and wrong to the facts of your case. You are not going to implant your law degree into their brains no matter how hard you try. You can read definitions of “proximate cause” or preponderance of the evidence” all day long and all you will receive back are blank stares! So, if you want to get your point across, then put your legal definitions into the same stories and themes they already understand. For example, in civil business dispute, you could say, “My client may be the tortoise, but the other is the hare. He can have all the potential in the world but my client did all the work! Just because we simply did our job and trusted he would do his part, which does not mean we should be cheated through his laziness.” It is almost impossible to oversimplify you case for a jury‐ the simpler, the better.

HOW TO TELL STORIES Mock Trial Research Watching ordinary people make sense of your case is something you really need to experience. It is also one of the best sources of trial themes and stories. Research jurors will take the facts of your case and try to understand them. In order to do this feat, they will simplify your facts and use their own home‐spun analogies. They put the facts into a conceptual framework in which they are able to make sense of it, all you have to do is listen. We mock trial almost all of our cases. No major manufacturing company today would release a new product without focus testing. Could you imagine the folks at Pepsi saying “You know let’s just try hot pink cans for a while and see if our sales go up!” Sounds ridiculous, yet I still meet trial attorneys who take a case to court without knowing whether they are going to win or lose it first! When it is time for people to convince one another, like during deliberations, analogies will rampant. What you will hear is, “When he said that, it made me think of the time….”, or “That sounds like…..to me” or “My Papa used to always say….” Use of “Household” Themes Another idea I find useful is to look for what I call “anchors” in the stories I plan to use. An anchor is something that will help keep the analogy in the jurors’ mind. The anchor can trigger a memory of the point you want the jurors to remember. For example, common household items that the jurors are likely to encounter during the trial are good anchors. In explaining the spread of Asbestosis in lungs over time, we used moldy bread. In telling the story, I note how my son can spot mold on bread before anyone else, but in a few days, everyone can see the mold. This method is simpler than trying to explain ‘A’ and ‘B’ readers to the jury. Plus, there is the added benefit of tying an “anchor” to the bread. Hopefully, whenever a juror sees a piece of bread during the trial, the asbestosis story would be triggered by the anchor.

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TRANSFORMING WORDS INTO ACTION Good lawyers communicate, Great Lawyers connect “How does an entire room of people become a single body of thought?” asked Joshua Karton a communication expert. Unlike a writer, a trial lawyer must use voice, body, eye contact, pauses, and gestures to paint a picture. A trial lawyer, just like an actor must be able to hold an audience with courtroom presence alone by using voice inflection and silence. Joshua Karton makes a poignant point in Communication Arts for the Professional when he says, “Who we don’t trust, are actors who seem more concerned with presenting themselves, with protecting their performances, than with connecting with others.” Ultimately, the objection of any trial lawyer should be to connect with the jury, using the tools of the storyteller is a valuable tool in facilitating that objective. The great trial lawyer Gerry Spence says: “The problem is that we, as lawyers have forgotten how to speak to ordinary folks… lawyers long ago abandoned ordinary English. Worse, their minds have been smashed and serialized, and their brain cells restacked so that they no longer can explode in every direction with joy, love, and rage. They cannot see in the many colors of feeling. The passion is gone replaced with the deadly drowning of intellect, and the sounds we make are all alike. Like machines mumbling and grinding away, because what was once free‐ the stuff of storytelling – has become rigid, flags and gears that convey nothing…” Sandra Zimmer of The Self Expression Center trains presenters to find their core being, their authentic self before they transfer information to others. She trains you to be comfortable just being yourself. The jury wants to hear our client’s story and we are the narrators. We cannot read the story, we have to create it like theater, in the courtroom. The jurors will forgive us for being inarticulate, forgetful, blurry eyed, but they will never forgive us for not being authentic. In the end, we are all storytellers, but the story is not just about our clients. It is the story of our country and what it stands for. It is the story of ourselves and what we stand for. It is the story of guilt and innocence. It is a story of just punishment when guilty. It is a story of due

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process. Ultimately, it is always a story about the price of freedom. We can all find creative ways to pay that price. TYRONE C. MONCRIFFE

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Texas Criminal Defense Lawyers Association

40th Annual Prairie Dog Lawyers Co-Sponsored with LCDLA January 14-15, 2021

Topic: Trying the Sexual Assault Case Speaker:

Heather Barbieri 7000 Preston Rd Ste 700 Plano, Texas (972) 424-1902 Phone (972) 489-1370535-2689 Fax hbarbieri@barbierilawfirm.com email www.barbierilawfirm.com website

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

Trying the Sexual Assault Case

By: Heather J. Barbieri Prairie Dog Seminar 2021 Lubbock, Texas

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Table of Contents Chapter One: Pre-Trial Considerations .................................................................................... 3 Polygraph Examinations ................................................................................................................... 3 Psychosexual Examinations .............................................................................................................. 3 Private Investigator .......................................................................................................................... 4 CPS File ............................................................................................................................................ 4 Grand Jury Packet/Presentation ....................................................................................................... 4 Investigation of Complainant ........................................................................................................... 5 Investigation of Prosecution Witnesses ............................................................................................ 5 Compiling Favorable Information for Client ...................................................................................... 6

Chapter Two: Jury Selection ................................................................................................... 7 Helpful Tips ...................................................................................................................................... 7 The Law Governing Jury Selection .................................................................................................... 8

Chapter Three: Opening Statement ...................................................................................... 15 Chapter Four: Cross-Examination of Stateâ&#x20AC;&#x2122;s Witnesses ......................................................... 17 Rule of Thumb................................................................................................................................ 17 Impeachment ................................................................................................................................. 17 Develop a Theory ........................................................................................................................... 18 Cross-Examination Witnesses in Sex Cases ..................................................................................... 18

Chapter Five: Direct of Defense Witnesses ........................................................................... 30 Chapter Six: Closing Argument.............................................................................................. 32

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Chapter One: Pre-Trial Considerations Polygraph Examinations i. Polygraph: an instrument for recording variations of several pulsations (as of physiological variables) simultaneously1 1. Compare with “lie detector”2 ii. Polygraph evidence is generally inadmissible “because the reliability of such tests remains unproven, and jurors could attach undue credibility to a test that purports to sort truth from fiction, a role for which a factfinder is more properly suited.” 3 iii. Mere mention of a polygraph does not automatically constitute reversible error, even if the results are revealed. If the results are revealed to the jury, an instruction to disregard is generally sufficient to cure any error.4

Psychosexual Examinations i. Psychosexual: of or relating to the mental, emotional, and behavioral aspects of sexual development or emotional attitudes concerning sexual activity5 ii. One of the first steps that defense counsel may take in cases when representing an individual charged with sexual misconduct is to refer the client for a psychosexual evaluation.6 1. Similar to a standard mental health evaluation, a psychosexual evaluation will assess an individual’s social, family, education, and employment history along with general psychological makeup. However, these assessments will focus further on sexual history and development.7 2. A psychosexual evaluation early on will allow the defense attorney to be informed on issues surrounding a client’s alleged misconduct and may also provide a baseline upon which the client can improve his or her case.8 iii. The purpose of psychosexual evaluations is to determine: 3. the risk of the individual repeating the behavior; 4. interventions that will be most effective; 1

MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/polygraph. Id. 3 Ex parte Bryant, 448 S.W.3d 29, 40 (citing Leonard v. State, 385 S.W.3d 570, 577-81, 583 (chronicling the history of the use of polygraph tests in Texas and holding that polygraph evidence amounts to “scientifically unreliable facts or data”)); See e.g., Martines v. State, 371 S.W.3d 232, 250 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Darling v. State, 262 S.W.3d 913, 920 (citing Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim. App. 1977); Harty v. State, 229 S.W.3d 849, 851 n.2 (Tex. App.—Texarkana 2007, pet. ref’d)). 4 Martines, 371 S.W.3d at 250-51 (citing Tennard v. State, 802 S.W.2d 678, 683-84 (Tex. Crim. App. 1990); Jasso v. State, 112 S.W.3d 805, 813-14 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)). 5 MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/psychosexual. 6 Alan Ellis & Mark H. Allenbaugh, Sex Offenders: Part 1—Sentencing, 31 SPG CRIM. JUST. 54 (Spring 2016). 7 Id. 8 Id. 2

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5. specific risk factors; 6. one’s willingness to comply with treatment recommendations and interventions; 7. identifying factors that may prevent engagement in treatment and interventions; 8. identifying strengths and protective factors that are preventatives.9

Private Investigator i. A defense attorney is not required to investigate the facts of a case personally, but can instead hire a private investigator to do so.10 ii. Each state regulates private investigators under different requirements. In Texas, private investigators are regulated by the Texas Department of Public Safety/Private Security Bureau as provided in the Private Security Act.11 iii. Private investigators in Texas require a license in order to conduct private investigation services.12

CPS File i. Child Protective Services (CPS) case records are confidential under Section 261.201(a) of the Texas Family Code and 40 Texas Administrative Code, Sections 700.201-700.207. If you and your client are entitled to a case record, the Texas Department of Family and Protective Services will review and redact the record to ensure its release complies with applicable laws and rules. However, members of law enforcement agencies and certain other entities can get case records without review or redaction.13 ii. As a defense attorney, requesting a record of someone personally involved in the case, you must fill out Form 4885-G Request for Case Records (the same form your client fills out to request records). You can find a copy of this form at: http://www.dfps.state.tx.us/policies/Personcaserecord.asp.14

Grand Jury Packet/Presentation i. A grand jury is selected and organized to acquire into the commission of crimes within a jurisdiction from which its members are drawn. Members

Psychosexual Evaluations, TEX. PREMIER COUNSELING SERVICES, https://www.texaspcs.org/services/assessmentsevaluations/psychosexual-evaluations. (last visited May 2, 2016). 10 Callahan v. State, 24 S.W.3d 483, 486 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). 11 Texas Licensing Requirements, TEX. ASS’N OF LICENSED INVESTIGATORS, http://www.tali.org/texas-licensingrequirements (last visited May 2, 2016(. 12 Texas Private Investigator, INT’L COUNTERINTELLIGENCE SERV., https://www.icsworld.com/Find_Local_Private_Investigator/Texas.aspx (last visited May 2, 2016). 13 How to Request Copies of Case Records, Tex. Dep’t of Family and Protective Serv., http://www.dfps.state.tx.us/policies/caserecord.asp (last visited May 2, 2016). 14 Request for Case Records (General Public), TEX. DEP’T OF FAMILY AND PROTECTIVE SERV., http://www.dfps.state.tx.us/policies/Personcaserecord.asp (last visited May 2, 2016).

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of the grand jury must determine the probability of guilt, and, if warranted, return indictments against alleged offenders. ii. If the defendant is going to testify before the grand jury, defense counsel must prepare his or her client for a grand jury appearance so that potential damage is minimized and positive information is gained. Preparing a client for a grand jury appearance should be the same as prepping a client to appear at trial.15 9. Defense counsel should advise his client to take notes in the grand jury room, copying down the questions asked as well as names, dates, locations, documents, incidents, and any other pertinent information mentioned in the grand jury room.16 iii. There is no general right to have counsel present in the actual grand jury room. However, the client may leave the room to consult his or her lawyer, so it is imperative that a defense attorney accompany his or her client to the grand jury proceeding, remaining as close as possible for consult. In addition, defense counsel should be prepared for every contingency. He or she should definitely have the case file as well as a research file.17

Investigation of Complainant i. Thoroughly investigate the background of the complaining witness 10. Requesting a subpoena for cell phone records can be quite helpful to a defense in certain cases. 11. Social networking sites, such as Facebook, Instagram, and Twitter may provide you with significant evidence regarding their past relationship or even statements made by the complaining witness indicative of what did or did not happen. ii. Identify witnesses regarding complainant’s veracity 12. It is important to identify other witnesses or friends who might know about the complaining witness’s veracity, or about the past relationship between your client and the complainant. iii. Identify witnesses with differing facts from Complainant

Investigation of Prosecution Witnesses i. Outcry Witness 13. An outcry witness is the first person, eighteen years of age or older, to whom the child victim makes a statement about the offense.18 ii. Responding Officer

Id. at § 28. Id. at § 30. 17 Id. at § 29. 18 Tex. Code Crim. Proc. Ann. art. 38.072 16

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iii.

iv.

vi.

vii.

14. The responding officer is normally merely responsible for going immediately to the scene of an accident or emergency to provide assistance.19 Detective or Investigator 15. The detective or investigator assigned to the case is the person who will typically carry out the major part of the formal inquiry or investigation.20 Forensic Interviewer 16. The individual who interviews the victim to elicit unique information when there are concerns of possible abuse.21 SANE Nurse or Doctor 17. SANE: Sexual Assault Nurse Examiner 18. A sexual assault nurse examiner is a registered nurse who has specialized forensic training in treating sexual assault victims. They not only examine a victim as a health professional, but they also assess, document, and preserve evidence for the legal aspects of their cases.22 Child/Victim Advocacy Representative 19. A child or victim advocate is a trained professional put in place to support victims of crimes. The advocates offer victims information, emotional support, help finding resources, and assistance filling out paperwork. The advocates will sometimes go to court with the victims23 Child Psychologist(s) 20. A child psychologist is a trained professional that specializes in a branch of traditional psychology that focuses on children, mainly on their development and behavior.24

Compiling Favorable Information for Client i. Character Witnesses

MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/first%20responder (definition of first responder). 20 OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definition/american_english/detective; OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definition/american_english/investigator. 21 See Forensic Interview Services, NAT’L CHILDREN’S ADVOCACY CTR., http://www.nationalcac.org/intervention/forensic-services.html. 22 SEXUAL ASSAULT NURSE EXAMINER (SANE), NURSING SCH. DEGREES, http://www.nursing-schooldegrees.com/Nursing-Careers/sane-nurse.html. 23 See What is a Victim Advocate?, NAT’L CTR. FOR VICTIMS OF CRIME, http://www.victimsofcrime.org/help-forcrime-victims/get-help-bulletins-for-crime-victims/what-is-a-victim-advocate-; About Child Advocates, CHILDADVOCATES.ORG, http://www.childadvocates.org/about-us/faq. 24 Starting a Career as a Child Psychologist, CAREERS IN PSYCHOLOGY, http://careersinpsychology.org/becoming-achild-psychologist/.

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21. Character is the nature of a person, his general disposition, or his disposition in respect to a particular trait.25 22. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. However, “[i]n a criminal case, a defendant may offer evidence of the defendant’s pertinent [character] trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.”26 ii. Polygraph Examination 23. There are numerous benefits to submitting to a private polygraph examination. For example, polygraph results that come back in favor of your client may be taken into consideration by both the Grand Jury and the prosecutor. If the results come back inconclusive or detrimental to your client, no one will ever know about them because polygraph tests are not admissible at trial, and they are performed under attorney/client and work product privilege.

Chapter Two: Jury Selection Helpful Tips i.

Know Your Judge

ii.

Questionnaires – Use or Not?

iii.

Let The Jury Speak – 90/10% Rule

iv.

Embrace Bad Responses

Opening & Closing in Jury Selection

vi.

Rogue Jurors

vii.

Friends, Enemies & Frenemies

viii.

Burdens of Proof

ix.

Validating Positive (nodding, “thank you,” “exactly”)

Looping & Superlooping

xi.

Self-Disclosure

Michael H. Graham, Introduction of Evidence of Character to Prove Conduct Pursuant to Fed. R. Evid. 404(a) and 405: Is it Worth the Candle to the Accused?, 47 NO. 4 CRIM. LAW BULLETIN ART. 8 (Summer 2011). 26 Tex. R. Evid. 404(a).

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xii.

Mirroring (subtly) Meek v. brawny

xiii.

Find Common Ground (prior jury service)

xiv.

Avoid Legalese

xv.

Always Have a Wingman

The Law Governing Jury Selection i. Jury Size27 1. District Court = twelve jurors 2. County Court â&#x20AC;&#x201C; six jurors 3. District/misdemeanor = 6 jurors ii. Alternate Jurors28 1. District Court = four maximum 2. County Court = two maximum 3. The role of an alternative juror is to serve in the order in which they were called if: a. Prior to verdict on guilt/innocence (or punishment in a slow plea); b. Juror becomes, or is found to be, unable or disqualified to perform his or her duties; or is found by the court, on agreement of the parties, to have good cause for not performing his or her duties. 4. Alternate jurors shall be drawn and selected in the same manner; shall have the same qualifications; shall be subject to the same examination and challenges; shall take the same oath; and shall have the same functions, powers, facilities, security, and privileges as regular jurors. 5. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered on the guilt or innocence of the defendant and, if applicable, the amount of punishment. iii. Failure to Register to Vote29 1. Failure to register to vote shall not disqualify any person from jury service. iv. Presence of the Defendant30 1. Felony Defendants c. Defendant must personally be present at the trial. d. Exception: Defendant voluntarily absents himself after the jury has been selected. 2. Misdemeanor Defendants

Tex. Code Crim. Proc. Ann. art. 33.01. Tex. Code Crim. Proc. Ann. art. 33.011. 29 Tex. Code Crim. Proc. Ann. art. 33.02. 30 Tex. Code Crim. Proc. Ann. arts. 33.03-04. 28

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e. Defendant must be personally present at trial if the punishment, or any part thereof, is imprisonment in jail. f. Exception: “Trial in Abstentia” i. A trial in absentia is a criminal proceeding in a court of law in which the defendant is not physically present at the proceeding. 3. Presumption g. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. 4. When presence is not required h. The defendant’s presence shall not be required at the hearing on the motion for a new trial in any misdemeanor case. i. In other misdemeanor cases, the defendant may, by consent of the State’s attorney, appear by counsel, and the trial may proceed without his personal presence. v. Formation of the Jury31 1. When a case is called for trial and the parties have announced ready, the names of those summoned as jurors in the case shall be called. 2. Those jurors not present may be fined no less than $100, and no more than $500. 3. An attachment may issue, on request of either party for any absent summoned juror, to have him brought forth before the court. 4. A person who is summoned but not present may, upon an appearance before the jury is qualified, be tried as to his qualifications and impaneled as a juror unless challenged, but no cause shall be unreasonably delayed on account of his absence. vi. Jurors Sworn32 1. To those present jurors, the court shall cause to be administered this oath: j. “You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God.” vii. Excuses33 1. Court Shall Determine k. Excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification.

Tex. Code Crim. Proc. Ann. art. 35.01. Tex. Code Crim. Proc. Ann. art. 35.02. 33 Tex. Code Crim. Proc. Ann. art. 35.05. 32

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l. If the court considers the excuse sufficient, the court shall discharge the prospective juror, or postpone the prospective jurors’ service to a date specified by the court, as appropriate. 2. Court’s Designee Shall Determine (in non-capital cases) m. The court's designee may hear and determine an excuse offered, including any claim of an exemption or a lack of qualification if a plan is approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case. n. The court’s designee may discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court’s designee, as appropriate, if: i. The court’s designee considers the excuse sufficient; and ii. The juror submits to the court’s designee a statement of the ground of the exemption, a lack of qualification, or other excuse. 3. Religious Beliefs o. A court or a court’s designee may discharge a juror or postpone the juror’s service on the basis of the juror’s observation of a religious holy day, or religious beliefs, only if the juror provides and affidavit.34 35 viii. Exemptions 1. Appearance is not mandatory in certain situations. p. Any person summoned as a juror who is exempt by law from jury service may establish his exemption without appearing in person by filing a signed statement of the ground of his exemption with the clerk of the court at any time before the date upon which he is summoned to appear. 36 ix. Consent 1. One summoned upon a special venire may, by consent of both parties, be excused from attendance by the court at any time before he is impaneled. x. Challenge to the Array37 1. Each party may challenge the array only on the ground that the officer summoning the jury was willfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by 34

Tex. Code Crim. Proc. Ann. art. 29.012(c). Tex. Code Crim. Proc. Ann. art. 35.05. 36 Tex. Code Crim. Proc. Ann. art. 33.05. 37 Tex. Code Crim. Proc. Ann. art. 35.97. 35

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his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained. xi. Preparation of List38 1. The trial judge, on the demand of the defendant, his attorney, or of the Stateâ&#x20AC;&#x2122;s counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. 2. The clerk shall randomly select the jurors by a computer or other process of random selection, and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the Stateâ&#x20AC;&#x2122;s counsel and to the defendant or his attorney. xii. Mode of Testing39 1. In testing the qualifications of a prospective juror after the juror has been sworn, the juror shall be asked by the court, or under its direction: a. Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state? b. Have you ever been convicted of theft or any felony? c. Are you under indictment or legal accusation for theft or any felony? xiii. Peremptory Challenges40 1. A peremptory challenge is made to a juror without assigning any reason. 2. Number of Challenges a. Capital/death penalty, one defendant = fifteen per side b. Capital/death penalty, two or more defendants are tried together i. State = eight for each defendant ii. Defendant = eight c. Non-capital felony, one defendant = ten both sides d. Non-capital felony, two or more defendants tried together iii. State = six for each defendant iv. Defendant = six e. Misdemeanor in District Court = five both sides f. Misdemeanor in District Court, two or more defendants tried together v. State = three for each defendant vi. Defendant = three g. Alternate Jurors 38

Tex. Code Crim. Proc. Ann. art. 35.11. Tex. Code Crim. Proc. Ann. art. 35.12. 40 Tex. Code Crim. Proc. Ann. art. 35.14-15. 39

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vii. If one or two alternates to be impaneled = one viii. If three or four alternates to be impaneled = two xiv. Challenges for Cause41 1. A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. 2. A challenge for cause may be made by either the State or the defense for any of the following reasons:42 a. The juror is not a qualified voter in the state and county under the Constitution and laws of the state, not including a failure of the juror to register. b. The juror has been convicted of misdemeanor theft or a felony. c. The juror is under indictment or other legal accusation for misdemeanor theft or felony. d. The juror is insane. e. The juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court, in its discretion, is not satisfied that the juror is fit for jury service in that particular case. f. The juror is a witness in the case. g. The juror served on the grand jury which found the indictment. h. The juror served on a petit jury in a former trial of the same case. i. The juror has a bias or prejudice in favor or against the defendant. j. The juror cannot read or write. k. From hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. i. To ascertain whether this challenge exists, the juror shall be first asked whether, in the juror’s opinion, the conclusion so established will influence the juror’s verdict. ii. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party of the court. iii. If the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action. 41 42

Tex. Code Crim. Proc. Ann. art. 35.16. Tex. Code Crim. Proc. Ann. art. 35.16(a).

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1. If it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. iv. If the court, in its discretion, is not satisfied that the juror is impartial, the juror will be discharged. 3. State Cause Challenges43 l. A challenge for cause may be made by the State for any of the following reasons: v. The juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty. vi. Juror is related within the third degree of consanguinity or affinity, as determined under Chapter 573 of the Government Code, to the defendant. vii. That the juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. 4. Defense Cause Challenges44 m. A challenge for cause may be made by the defense for any of the following reasons: viii. The juror is related within the third degree of consanguinity or affinity, as determined under Chapter 573 of the Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case. ix. The juror has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted, or as mitigation thereof, or of the punishment thereof. xv. Voir Dire Examination45

Tex. Code Crim. Proc. Ann. art. 35.16(b). Tex. Code Crim. Proc. Ann. art. 35.16(c). 45 Tex. Code Crim. Proc. art. 35.17. 44

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1. When the court, in its discretion, so directs, except as provided in Section 2 of TCCP Article 35.17, the State and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel. 2. In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court. xvi. Absolute Disqualification46 1. No juror shall be impaneled when it appears that he is subject to the second, third, or fourth cause of challenge in TCCP Article 35.16, though both parties may consent. xvii. Oath to Jury47 1. When the jury has been selected, the following oath shall be administered them by the court or under its direction: n. â&#x20AC;&#x153;You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.â&#x20AC;? xviii. Jurors May Separate48 1. The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury. 2. The court on its own motion may, and on the motion of either party shall, after having given its charge to the jury, order that he jury not be allowed to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged. 3. Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court. 4. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. 5. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict.

Tex. Code Crim. Proc. art. 35.19. Tex. Code Crim. Proc. art. 35.22. 48 Tex. Code Crim. Proc. art. 35.23. 47

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6. In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated. xix. Batson Challenges (Challenges based on race, ethnicity, or gender)49 1. After the parties have delivered their lists to the clerk under TCCP Article 25.26 and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. 2. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable group, that the attorney representing the State exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, ethnicity, or gender, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the State were made for reasons based on race, ethnicity, or gender. 3. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. 4. The burden of persuasion remains with the defendant to establish purposeful discrimination. 5. If the court determines that the attorney representing the State challenged prospective jurors on the basis of race, ethnicity, or gender, the court shall call a new array in the case. xx. Personal Juror Information50 1. Information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the jurorâ&#x20AC;&#x2122;s home address, home telephone number, social security number, driverâ&#x20AC;&#x2122;s license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any other court personnel except on application by a party in the trial or on application by a bona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror. 2. On a showing of good cause, the court shall permit disclosure of the information sought.

Chapter Three: Opening Statement Always Make an Opening Statement! a. Powerful Beginning i. The Hook 49 50

TEX. CODE CRIM. PROC. art. 35.261. TEX. CODE CRIM. PROC. art. 35.29.

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ii. iii.

iv.

vi.

vii. viii.

1. Use a quote/anecdote q. “Glove don’t fit, got to acquit” r. “Kill or be killed” s. “Hell hath no fury like a woman scorned” Storybook Style (Once upon a time—draw the listeners in) a. Developing Your Style Voice 1. Do’s t. Use inflections (volume, tempo, pitch) u. Use simple words v. Project your voice (know the courtroom – practice in the courtroom) w. Use first person x. Extemporaneous v. impromptu y. Use active v. passive voice 2. Dont’s z. Whine, squeak, be monotone aa. Use “uh,” “um,” “like” bb. Be melodramatic cc. Use impressive-sounding words Unspoken signs 1. Meaningful gestures (head nodding, finger pointing, common meaning) 2. Avoid nervous gestures, rubbing hands, tugging on suit jacket, playing with a ring, watch, or buttons, putting your hands in pockets—UNLESS there is a PURPOSE. 3. Keep your hands free (notes should be nearby, but not in your hands) Movement/placement 1. Anchor position: begin and end 2. Conversational distance: 5-8 feet away 3. Avoid pacing, rocking, or turning your back Eye contact 1. Sincerity 2. Persuasive 3. Avoid shifty eyes, looking “beyond” or “behind” jurors 4. Listen with your eyes b. Providing the Substance Write it out The Beginning 1. The hook 2. Continue theme from VD 3. Scene-setting 16 | P a g e

ix. The Middle 1. Extemporaneous 2. Not rehearsed 3. Not impromptu x. The Body 1. What will the jury see 2. What won’t the jury see 3. Key facts and evidence 4. Law relevant to the defense 5. Villian – Victim – Hero 6. No overstating (unkept promises) xi. The End 1. Primacy v. Recency dd. When asked to recall a list of items in any order, people tend to remember the end of the list (recency) and the beginning of the list (primacy) best, while remembering the middle items the worst.51 2. Tell them why they should rule in your favor a. Maintaining Structure xii. Chronological xiii. Witness by witness xiv. Topic by topic

Chapter Four: Cross-Examination of State’s Witnesses Rule of Thumb i. “Never, never, never, on cross-examination ask a witness a question that you don’t already know the answer to . . . do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.” – Harper Lee

Impeachment 1. 2. 3. 4. 5. 6. 7. 8. 9.

Lack of personal knowledge Defective personal knowledge Selective memory Bias Criminal history Prior bad acts Motive (consistent with theory) Gather impeachment evidence Hire/appoint investigator

Saul McCleod, Serial Position Effect, SIMPLY PSYCHOLOGY (2008), http://www.simplypsychology.org/primacyrecency.html.

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10. Criminal background check 11. Explore motives 12. Gather/subpoena all supportive documentary evidence 13. Gather/subpoena all extrinsic evidence

Develop a Theory i. Examples: 1. Parental alienation 2. Money 3. Revenge 4. Attention

Cross-Examination Witnesses in Sex Cases ii. Outcry Witness 1. An outcry witness is the first person, eighteen years of age or older, to whom the child victim makes a statement about the offense.52 2. A hearing on reliability is required if the defense so requests. 3. Event specific (not person-specific) 4. Multiple outcry witnesses are permissible 5. Rules of Impeachment of an outcry witness ee. Impeach firmly if an interested party ff. Impeach compassionately if non-interested 6. Tex. Code Crim. Proc. Ann. art. 38.072 sets forth an outcry exception to the hearsay rule, striking a balance between the necessity of introducing a child’s statements through an adult witness and the necessity of avoiding the dangers of implicit hearsay.53 7. Before a witness can testify as an outcry witness, it must be shown that he or she is at least eighteen years of age and that he or she was the first person to whom the victim made statements about the offense.54 a. The proper outcry witness is the first adult whom the child described the abuse in some discernible way, not the first adult the child told.55 8. A trial court has broad discretion as to who is a proper outcry witness.56 52

See Tex. Code. Crim. Proc. Art. 38.07. In re Z.L.B., 102 S.W.3d 120, 121-22 (Tex. 2003); see also Tex. Fam. Code § 54.031(b). 54 Tex. Code Crim. Proc. Ann. art. 38.072 § 2. 55 Brown v. Texas, 381 S.W.3d 565, 571 (Tex. App. – Eastland 2012, no pet.) (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990)); In re C.E.S., 400 S.W.3d 187, 192 (Tex. App. – El Paso 2013, no pet.) (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990)). 56 Villnueva v. State, 209 S.W.3d (Tex. App. Waco 2006). 53

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iii.

iv.

vi.

vii.

viii.

ix.

gg. Always make sure the witness qualifies. Responding Officer 1. Attempt to impeach by demonstrating the officerâ&#x20AC;&#x2122;s: hh. Bias ii. Incompetency jj. Incomplete job; meaning list out what was not done kk. Rush to judgment ll. The verdict has no effect on officerâ&#x20AC;&#x2122;s employment mm. Lack of personal knowledge Detective or Investigator 1. Impeach the detective or investigator in the same way as a responding officer. 2. Request the following on the detective or investigator: nn. Disciplinary records (IAD) oo. Open records (TCLEOSE) Forensic Interviewer 1. In cross-examining a forensic interviewer, the goal is to neutralize by demonstrating: pp. Signs or symptoms of abuse mirror non-abuse qq. Lack of personal knowledge SANE Nurse or Doctor 1. In cross-examining a nurse or doctor, the goal is to neutralize and bring out a slight motive by demonstrating: rr. Signs or symptoms of abuse mirror non-abuse ss. Lack of personal knowledge tt. Natural motive i. Law enforcement-based ii. Overly sympathetic Child/Victim Advocacy Representative 1. In cross-examining an advocacy representative, the goal is to neutralize and impeach by demonstrating: uu. Signs or symptoms of abuse mirror non-abuse vv. Lack of personal knowledge ww. Demonstrate bias i. Ever testified for defense? (know the answer beforehand) Child Psychologist(s) 1. In cross-examining a psychologist, the goal is to neutralize through demonstrating that the signs or symptoms of abuse mirror nonabuse, and demonstrate bias. Complaining Witness/Alleged Victim 1. Make a competency determination

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2. 3.

xx. Every person is competent to be a witness unless the Texas Rules of Evidence provide otherwise. An individual lacking sufficient intellect, such as a child, whom the court examines and finds lacks sufficient intellect to testify concerning the matters at issue is incompetent to testify.57 yy. Rule 601 of the Rules of Evidence creates a presumption that a person is competent. However, when the competency of a child witness is challenged, a trial court must assure itself that the child has: i. The ability to intelligently observe the events in question at the time of the occurrence; ii. The capacity to recollect the events; and iii. The capacity to narrate the events, which requires the witness be able to understand the questions asked, frame intelligent answers to those questions, and understand the moral responsibility to tell the truth.58 Interview, if possible Review victim’s: zz. Forensic interview aaa. Statements bbb. Psychological records ccc. Educational records Impeach with: ddd. Defective personal knowledge eee. Selective memory fff. Bias ggg. Criminal history hhh. Prior bad acts iii. Motive i. Alienation ii. Money/civil liability iii. Revenge iv. Attention v. Trapped Gather impeachment evidence by: jjj. Hiring or appointing an investigator kkk. Criminal background lll. Explore motives

Tex. R. Evid. 601(a). Davis v. State, 268 S.W.3d 683, 699 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App. 2000). 58

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mmm. Gather/subpoena all supporting documentary evidence nnn. Gather/subpoena all extrinsic evidence, such as prior inconsistent statements, arrest reports, and documents demonstrating prior bad acts b. The Law Governing Cross-Examination 59 i. Outcry Witness 1. A conviction is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. 2. This requirement does not apply if, at the time of the alleged offense, the victim was: a. 17 years of age or younger; b. 65 years of age or older; or c. 18 years of age or older who, by reason of age or physical or mental disease, defect, or injury, was substantially unable to satisfy the person’s need for food, shelter, medical care, or protection from harm. ii. Character Evidence60 1. Evidence of a victim’s character or character trace is inadmissible to prove that on a particular occasion the person acted in accordance with the character trait, except: a. In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. 2. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609. 3. Crimes, Wrongs, or Other Acts a. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. b. However, in criminal cases, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. iii. Habit; Routine; Practice61 1. Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine 59

Tex. Code. Crim. Proc. Art. 38.07. Tex. R. Evid. 404. 61 Tex. R. Evid. 406. 60

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iv.

vi. vii.

viii.

practice. The court may admit this evidence regardless of whether it is corroborated or whether there is an eyewitness. Competency to Testify in General62 1. Every person is competent to be a witness unless these rules provide otherwise. 2. Incompetent witnesses include: a. Insane persons: A person who is now insane or was insane at the time of the events about which the person is called to testify. b. Persons lacking sufficient intelligence. A child—or any other person—whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue. Need for Personal Knowledge63 1. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove persons knowledge may consist of the witness’s own testimony. 2. This rule does not apply to a witness’s expert testimony under Rule 703. Who May Impeach a Witness64 1. Any party, including the party that called the witness, may attack the witness’s credibility. A Witness’s Character for Truthfulness or Untruthfulness65 1. Reputation or Opinion Evidence a. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. 2. Specific Instances of Conduct a. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness. Impeachment by Evidence of a Criminal Conviction66 1. Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if: a. The crime was a felony or involved moral turpitude, regardless of punishment;

Tex. R. Evid. 601. Tex. R. Evid. 602. 64 Tex. R. Evid. 607. 65 Tex. R. Evid. 608. 66 Tex. R. Evid. 609. 63

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5. 6.

b. The probative value of the evidence outweighs its prejudicial effect to a party; and c. It is elicited from the witness or established by public record If more than ten years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is only admissible if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. Evidence of a conviction is not admissible if: a. The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; b. Probation has been satisfactorily completed for the conviction, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; or c. The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Evidence of a juvenile adjudication is admissible under this rule only if: a. The witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or b. The Untied States or Texas Constitution requires that it be admitted A conviction for which an appeal is pending is not admissible under this rule. Evidence of a witness’s conviction is not admissible under this rule if, after receiving from the adverse party a timely written request specifying the witness, the proponent of the conviction fails to provide sufficient written notice of intent to use the conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such evidence.

7. ix. Religious Beliefs or Opinions67 1. Evidence of a witness’s religious beliefs or opinions is not admissible to attach or support the witness’s credibility. x. Mode and Order of Examining Witnesses and Presenting Evidence68 1. A witness may be cross-examined on any relevant matter, including credibility. 67 68

Tex. R. Evid. 610. Tex. R. Evid. 611.

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2. Ordinarily, the court should allow leading questions on crossexamination. xi. Witness’s Prior Statement and Bias or Interest69 1. Witness’s Prior Inconsistent Statement. a. Laying the foundation: When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness: i. The contents of the statement; ii. The time and place of the statement; and iii. The person to whom the witness made the statement. b. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel. c. A witness must be given the opportunity to explain or deny the prior inconsistent statement. d. Evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement. e. The above does not apply to an opposing party’s statement under Rule 801(e)(2) 2. Witness’s Bias or Interest a. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement—whether oral or written—to prove the witness’s bias or interest, a party must tell the witness: i. The contents of the statement; ii. The time and place of the statement; and iii. The person to whom the statement was made. b. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel. c. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest. And the witness’s proponent may present evidence to rebut the charge of bias or interest. d. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it.

Tex. R. Evid. 613.

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xii.

xiii.

xiv.

xv.

xvi.

3. Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility. Excluding Witnesses70 1. At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. 2. This does not authorize excluding: a. A party who is a natural person and, in civil cases, that person’s spouse; b. After being designated as the party’s representative by its attorney in a criminal case, a defendant that is not a natural person; c. A person whose presence a party shows to be essential to presenting the party’s claim or defense; or d. The victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial. Opinion Testimony by Lay Witnesses71 1. If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: a. Rationally based on the witness’s perception; and b. Helpful to clearly understanding the witness’s testimony or to determining a fact issue. Testimony by Expert Witnesses72 1. 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. Bases of an Expert’s Opinion Testimony73 1. An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need to be admissible for the opinion to be admitted. Disclosing the Underlying Facts or Data and Examining an Expert About Them74 1. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the

Tex. R. Evid. 614. Tex. R. Evid. 701. 72 Tex. R. Evid. 702. 73 Tex. R. Evid. 703. 74 Tex. R. Evid. 705. 71

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underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. 2. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a criminal case must be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing. 3. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion. xvii. The Rule Against Hearsay75 1. Hearsay is not admissible unless any of the following provides otherwise: a. A statute; b. The Texas Rules of Evidence; or c. Other rules prescribed under statutory authority 2. Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay. xviii. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness76 1. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: a. Present sense impression – A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.77 b. Excited utterance – A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.78 c. Then-existing mental, emotional, or physical condition – A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.79 d. Statement made for medical diagnosis or treatment – A statement that:80 i. Is made for—and is reasonably pertinent to— medical diagnosis or treatment; and ii. Describes medical history; past or present symptoms or sensations; their inception; or their general cause 75

Tex. R. Evid. 802. Tex. R. Evid. 803. 77 Tex. R. Evid. 803(1). 78 Tex. R. Evid. 803(2). 79 Tex. R. Evid. 803(3). 80 Tex. R. Evid. 803(4). 76

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e. Recorded recollection – A record that:81 i. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; ii. Was made or adopted by the witness when the matter was fresh in the witness’s memory; and iii. Accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness. f. Records of regularly conducted activity – A record of an act, event, condition, opinion, or diagnosis if:82 i. The record was made at or near the time by—or from information transmitted by—someone with knowledge; ii. The record was kept in the course of a regularly conducted business activity; iii. Making the record was a regular practice of that activity; iv. All of these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and v. The opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. g. Absence of a record of a regularly conducted activity – Evidence that a matter is not included in a record described in paragraph (6) if:83 i. The evidence is admitted to prove that the matter did not occur or exist; ii. A record was regularly kept for a matter of that kind; and iii. The opponent fails to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. h. Public records – A record or statement of a public office if:84 i. It sets out: 1. The office’s activities; 2. A matter observed while under a legal duty to report, but not including, in a criminal

Tex. R. Evid. 803(5). Tex. R. Evid. 803(6). 83 Tex. R. Evid. 803(7). 84 Tex. R. Evid. 803(8). 82

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i. j.

case, a matter observed by law enforcement personnel; and ii. The opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness. Public records of vital statistics – A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.85 Absence of a public record – Testimony—or certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:86 i. The record or statement does not exist; or ii. A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind. Records of religious organizations concerning personal or family history – A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.87 Certificates of marriage, baptism, and similar ceremonies – A statement of fact contained in a certificate:88 i. Made by a person who is authorized by a religious organization or by law to perform the act certified; ii. Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and iii. Purporting to have been issued at the time of the act or w/in a reasonable time after it. Family records – A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.89 Records of documents that affect an interest in property – The record of a document that purports to establish or affect an interest in property if:90 i. The record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

Tex. R. Evid. 803(9). Tex. R. Evid. 803(10). 87 Tex. R. Evid. 803(11). 88 Tex. R. Evid. 803(12). 89 Tex. R. Evid. 803(13). 90 Tex. R. Evid. 803(14). 86

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p. q.

ii. The record is kept in a public office; and iii. A statute authorizes documents of that kind in that office. Statements in documents that affect an interest in property – A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document91 Statements in ancient documents – A statement in a document that is at least 20 years old and whose authenticity is established92 Market reports and similar commercial publications – Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations93 Statements in learned treatises, periodicals, or pamphlets – A statement contained in a treatise, periodical, or pamphlet if:94 i. The statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and ii. The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. Reputation concerning personal or family history – A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.95 Reputation concerning boundaries or general history – A reputation in a community—arising before the controversy—concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.96

Tex. R. Evid. 803(15). Tex. R. Evid. 803(16). 93 Tex. R. Evid. 803(17). 94 Tex. R. Evid. 803(18). 95 Tex. R. Evid. 803(19). 96 Tex. R. Evid. 803(20). 92

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u. Reputation concerning character – A reputation among a person’s associates or in the community concerning the person’s character.97 v. Judgment of a previous conviction – Evidence of a final judgment of a conviction if:98 i. It is offered in a criminal case and: 1. The judgment was entered after a trial or a guilty or nolo contendere plea; 2. The conviction was for a criminal offense; 3. The evidence is admitted to prove any fact essential to the judgment; 4. When offered by the prosecutor for a purpose other than impeachment, the judgment was against the defendant; and 5. An appeal of the conviction is not pending. w. Judgments involving personal, family, or general history or a boundary – A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:99 i. Was essential to the judgment; and ii. Could be proved by evidence of reputation. x. Statement against interest – A statement that:100 i. A reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and ii. Is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Chapter Five: Direct of Defense Witnesses i. Educate the trier of fact regarding facts surrounding the allegations; ii. Convince the fact-finder that your side is the right one; and iii. Anticipate & diffuse an impending cross-examination a. Elements of Direct Examination 97

Tex. R. Evid. 803(21). Tex. R. Evid. 803(22). 99 Tex. R. Evid. 803(23). 100 Tex. R. Evid. 803(24). 98

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iv. A simple, effective direct examination contains the following elements: 1. Scene-Setting: painting a picture for the jury is critical. Once a juror can actually visualize the who, what and where, it becomes the truth. Telling your story through scene-setting allows the jury to actually experience the events in their minds. 2. Using Exhibits: exhibits bring the story to life. Your client may be the most exquisite speaker, but as we all know, “a picture paints a thousand words.” A person can explain how happy the family was before these false allegations arose, but a family photo of loving parents and joyful kids in front a Christmas tree & fireplace hammer it home. 3. Organizing: There are several ways to organize your direct examination. Whichever approach you choose, just stick with it. The following are examples: a. Chronological b. Topic by Topic c. Witness by Witness i. Refuting State’s Witnesses ii. Supporting Defense Witnesses 4. Keeping it Interesting: It does not have to be a night at “The Improv.” In fact, an effective direct examination oftentimes can be quite serious. However, it should not be downright boring. In getting to know your client, and his story, keep track of all of the interesting facts, and bring those out to the jury. 5. Humanizing Your Client: The prosecution wants your client to be perceived as a predatory rapist. You absolutely must expose the jury to your client’s most redeeming traits, and allow them to relate to him on some level. At the end of the case, the jury must believe that your client could just as easily be them, or their husband, or their brother, etc. Once they see it from that perspective, you are on your way to a well-deserved not guilty verdict. 6. Avoiding Pitfalls: There are a few things to stay away from no matter what: a. Unnecessary details; b. Facts that can readily be disputed; c. Impeachable statements; and d. Facts that open the door to otherwise inadmissible evidence. 7. Stealing the Prosecution’s Thunder: Make sure all negative aspects of your case come from you first. Deal with weaknesses before the prosecution gets their hands on your client. It will serve to steal their thunder, and will show that you want to be fully open and honest with the jury in presenting your case. b. Preparing Your Client for Prosecutor’s CrossExamination

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v. Be forewarned: The only thing that can destroy all of your hard work on direct examination, is a blistering cross-examination from the prosecution. You must prevent the prosecution from dismantling your story, based on lack of preparation. vi. Tips on circumventing any prosecutorial sabotage: 1. Confront all weaknesses head-on. This should have already been done on direct. But be prepared for the prosecution to re-hash any and all weaknesses in your case. Do not let your client back-pedal on this. Prepare your client to be strong, and simply face the imperfections. 2. Practice with your client. Find your inner-prosecutor or ask a colleague to help you out in this regard. It is imperative that your client is prepared to deal with various types of cross-examination, including storybook cross, argumentative cross, fast cross, etc. Remind your client not to argue with the prosecutor, and that anything that is distorted by the prosecutor can be cleared up on redirect. c. Re-Direct Examination vii. Keep it simple. Do not disrespect the time of the jurors by doing an entire repeat of direct examination. viii. Clear up the muddy waters, created by the prosecution. ix. Re-iterate your greatest strengths once again, and finally. x. End it on your best note.

Chapter Six: Closing Argument i. ii. iii.

Tie the Case up With Your Defensive Theory Use the Hook Develop a Working Outline Throughout Trial i. Strengths and weaknesses ii. Take notes throughout trial (use specific legal pad for closing points) d. Structure iii. Chronological iv. Witness by witness v. Topic by topic vi. Reasons to doubt vii. Develop Your Argument Style viii. Doâ&#x20AC;&#x2122;s (same as in the Opening Statement section) 1. Use inflections (volume, tempo, pitch) 2. Use simple words 3. Project your voice 4. Use first person 5. Extemporaneous v. impromptu (have notes nearby, but donâ&#x20AC;&#x2122;t read) 32 | P a g e

ix.

xi.

xii.

xiii.

6. Present tense v. Past tense 7. Use meaningful gestures (head-nodding, purposeful hand gestures) Don’ts (same as in the Opening Statement section) 1. Whine, squeak, be monotone 2. “Uh,” “Um,” “Like” 3. Be melodramatic 4. Use impressive-sounding words 5. Avoid nervous gestures (playing with pen, hands in pocket) Body Movement/Placement 1. Anchor position: begin and end 2. Bolstering your argument style: move closer to the bench for favorable parts of the jury charge 3. Conversational distance: 5 – 8 feet away from jurors 4. Avoid pacing, rocking, and turning your back to the jury Eye Contact 1. Shows sincerity 2. More persuasive 3. Avoid shifty eyes, or looking beyond the jury 4. Listen with your eyes (pay attention to their verbal clues) Using Exhibits 1. Narrative Exhibits (PowerPoints, easels) a. Timelines, reasons to doubt, topic-by-topic b. 6 x 6 Rule: 6 lines; 6 words per line MAX c. Do not read from PowerPoint 2. Evidentiary/Courtroom Exhibits d. Weapons, Business records a. Mix reasons to doubt with courtroom exhibits Providing the Substance 1. The Beginning a. Utilizing the Hook b. State question that will be answered c. Thematic Quote d. Antecodote 2. The Middle a. Extemporaneous (Not rehearsed or wholly impromptu) b. Go through the evidence/lack of evidence c. Credibility of the witnesses d. Law relevant to the defense e. Law as applied to the facts f. Refute prosecutor’s theory (steal thunder) g. Answer their obvious questions h. Burdens/presumption of innocence 3. The End a. Empower them to acquit your client b. Primacy/recency c. Re-iterate strengths 33 | P a g e

d. Memorize last remarks a. Final hook or question that WAS answered by you b. Tell them what you want (and what your client deserves!)

Good Luck!

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SEX ASSAULT MOTIONS CHECKLIST

MOTIONS TO BE PREPARED

Notice of Appearance/Letter of Representation/Motion to Substitute Counsel Request for Discovery Pursuant to § 39.14 Defendant’s Request for Notice of Intent to Introduce 404b (TRE) Notice guilt/innocence phase Formal TPIA Records Request Formal Request for Probable Cause Affidavit (to clerk of judge that signed arrest warrant) Pursuant to Article 15.26 of the Texas Code of Criminal Procedure Defendant’s Request for Notice of Intent to Introduce Extraneous Offenses by the Defendant in Sentencing § 37.07, TCCP Defendant’s Request for Notice of Intent to Introduce Evidence of Prior Convictions Pursuant to § 609 TRE Motion to Quash Indictment Application for Subpoena Duces Tecum– School Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Medical/Psychological Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Family Court Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Phone Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Business Records (returnable on a hearing date) Subpoena for Social Media Records (Snapchat, Facebook, Twitter, Instagram, etc.) Motion for Forensic Download & Analysis of Accuser’s Phone Motion to Exclude/Suppress Outcry Statements/Testimony of Outcry Witness Due to Lack of Reliability/Vagueness --The first adult (18 or older) that the child (UNDER 14) tells how, when & where Motion to Exclude/Suppress Outcry Statements/Testimony of Outcry Witness for Failure to Comply with 38.072 (Notice to

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Check=yes

18 19 20

21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

defense (1) 14 days before trial (2) inform of intent to use (3) name of outcry witness (4) written summary of the statement) Motion for Disclosure of DFPS (CPS) Records Pursuant to § 261.201 Family Code & Hearing Requested (Protective Order) Application for Subpoena to Custodian of Records for DFPS Region (returnable on a hearing date) Application for Subpoena -- All Records Regarding Accuser, and Allegations in This Matter: to Custodian of Records for Child Advocacy Center. Request CV & employee records for: all employees who participated in this case: (1) law enforcement, CPS worker, victim advocates, forensic interviewer, etc.) (returnable on a hearing date) Subpoena SOP’s of Law Enforcement Agency Subpoena SOP’s of Child Advocacy Center (general, day to day), list of members of Board, salaries of directors, managers for preceding 5 years Defense Request for State to Disclose Expert Witnesses in Its Case in Chief and Rebuttal Motion for Investigation and Disclosure of Brady/Exculpatory Evidence Motion for 702 (Daubert)Hearing Motion to Submit Jury Questionnaire Election for Jury to Assess Punishment Motion for Deposition of State’s Witness Defendant’s Motion to Require State to Elect Which Specific Sexual Act Intends to Use to Prove Elements of the Indictment Application for Subpoena Witness (lay witness appearance – not documents) Motion for Independent Examination of Physical Evidence & Independent Testing & Analysis (DNA, serology, fingerprint, etc.) Motion for State to Disclose Witness List Motion for Duplicate of Forensic Interview with Protective Order Motion in Limine/Objections to Exclude Extraneous Offenses Motion to Suppress Statements of Defendant Motion in Limine –Use of Word “Victim” Motion in Limine—Use of “Sexual Abuse” Motion in Limine Regarding Opinion as to Defendant’s Guilt

39 Motion in Limine Regarding Information Acted Upon 40 Motion in Limine Regarding Opinion as to Truthfulness of Allegations 41 Motion in Limine Regarding Previous Sexual Assault Acts 41 Defendant’s Disclosure to State of Experts (Due 20 days before trial) 43 Defendant’s Ex Parte Request for Funds for Defense Expert 44 Defendant’s Notice of Filing of Business Records (Records filed & notice to opposing counsel due 14 days before trial) 45 Ex Parte Motion for Appointment of Expert (Under Seal)

Juror Questionnaire JUROR NAME: _______________________________ AGE: __________ JUROR NO. __________ 1. Circle any of the following in which you have had training or education: Child Development

Law

Criminal Justice

Family Counseling

Psychology

Human Sexuality Religion

Law Enforcement

2. Circle any of the following cases you have ever served as a juror in: Criminal Case_

Grand Jury

Civil Case

Never served

What kind(s) of criminal case(s), if any?: _______________________________________________________________________ What was the verdict? ______________________________________________________________________________________ Were you the foreperson? Circle: YES / NO 3. Have you or any family members or close friends ever worked for any law enforcement agency? Circle YES / NO If yes, who and what law enforcement agency? __________________________________________________________________ 4. Have you ever contributed time or money to any crisis center, child abuse agency, or any other organization dedicated to helping victims of crime? Circle YES / NO If yes, please explain: _______________________________________________________________________________________ 5. Have you or anyone you know ever been the victim of sexual assault, or any other unwanted sexual contact? Circle: YES / NO If yes, please explain: _______________________________________________________________________________________ 6. Have you or anyone you know ever been accused of sexual assault, sexual abuse, or any other unwanted sexual contact? Circle: YES / NO If yes, please explain: _______________________________________________________________________________________ 7. Have you followed the cases of alleged sexual assault or abuse in the media? Circle: YES / NO If yes, which cases have you followed? _________________________________________________________________________ Have you formed any opinions as to whether the accused in that case, or those cases, is guilty? Please explain: _________________ ________________________________________________________________________________________________________ 8. Have you formed any opinions on whether the Defendant is guilty of the charges based solely on the fact that he is accused of the offense? Circle: YES / NO / MAYBE Please explain your answer: __________________________________________________________________________________ ________________________________________________________________________________________________________ The answers contained in this questionnaire are true and correct to the best of my knowledge and ability. _______________ _______________

______________________________________________________ Potential Jurorâ&#x20AC;&#x2122;s Signature Date CONFIDENTIAL

Texas Criminal Defense Lawyers Association Membership Application (Effective 4/2019)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________ __________________________

______________________________________________________

Name (first, middle, last) Address

Date of Birth*

Ethnicity*

City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Business Email Website

______________________________________________________ Bar Card Number/Date Licensed

______________________________________________________ Member of Local Bar

New-Member Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time.

Membership Fees Membership Category and Yearly Fees: $_______ $100 First-time ($100 for each of the first two years) $_______ $180 Regular member $_______ $60 Public defender (must be a PD employee) $_______ $330 Voluntary sustaining (required for TCDLA officers and directors) $_______ $100 TCDLA past president $_______ $80 Distinguished member (70+ years old) $_______ $20 Law student (not auto-renew) $_______ $80 Affiliate (: q Paralegal q Investigator q Expert q Other (law professors & others approved by board) I prefer not to participate in auto-renewal $_______ Total

Get Involved: Committees/Lawyer Locator q I’m interested in serving on a committee—send information. q Send me a Board application. q Yes! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

_________________ __________________ ________________

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________.

Payment Method For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above. As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows: • This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

____________________________________________________

______________________________________________________

Type Name to Authorize Payment Date

q C hecking Account Name of Institution* _____________________________ Financial Institution 9-Digit Routing # __________________________ Account # __________________________

q Credit card (Visa, Mastercard, Amex, or Discover)

______________________________________________________ Credit Card Number

______________________________________________________ Expiration Date

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033. Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out. For refunds please note credit cards may take 2-5 business days, checks may take longer. Contact mrendon@tcdla.com for any questions or concerns.

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

OUR HISTORY

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

ABOUT TCDLA

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

ABOUT CDLP

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

ABOUT TCDLEI

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

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

WWW.TCDLA.COM

Save $$$ with Auto Renew

Texas Criminal Defense Lawyers Association Membership Application (Effective 7/18/2018)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. Please allow two to four weeks for confirmation and certificate receipt. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________ __________________________

______________________________________________________

Name (first, middle, last)

Address

Date of Birth*

Ethnicity*

City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Company Email Website

______________________________________________________ Bar Card Number/Date

______________________________________________________ Affiliate Association

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time. Nominating Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

Membership Category q Automatic Renewal $160—save $20 annually in select categories (regular, sustaining & voluntary sustaining members). As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date that the payment is due. I further understand and agree as follows: This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date. Checking Account Name of Institution* _____________________________ Financial Institution 9-Digit Routing # __________________________ Account # __________________________ One-year membership. Please check appropriate box. q First-time member reg • $100 for each of the first two years q Regular member (renewal) reg • $180 (auto renew save $20: $160) q Public defender member (must be a PD employee) pd • $60 q Texas or q Federal q Voluntary sustaining member (required for TCDLA officers and directors) vs • $330 q Sustaining member (required for TCDLA associate directors) sus • $230

q TCDLA past president member ppres • $100 q Distinguished member (70+) dis • $80 q Law student member stu • $20 q Affiliate member aff • $80 q Paralegal paral q Investigator inv q Expert exp q Other (law professors and other persons approved by the board of directors)

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________. Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contri-

bution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Get Involved: Committees/Lawyer Locator q I’m interested in serving on a committee—send information. q Send me a Board application. q Yes! Include me in the online Lawyer Locator.* You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

____________________________________ ___________________________________ ____________________________________ *Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

Payment Method q Check payable to TCDLA q Credit card (Visa, Mastercard, Amex, or Discover) Auto renewal saves $20 a year for regular members.

______________________________________________________

Credit Card Number

Name on Card

Expiration Date

Signature

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out.

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

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

MARCH 2014

WWW.TCDLA.COM

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

Pledge Options Choose a fund that’s near and dear to you: For the q ASSOCIATE FELLOWS FUND ($750) q FELLOWS FUND ($1500) q SUPER FELLOWS FUND ($3000) q In one lump sum q Quarterly q Monthly q In ____ payments of $________.

I would like to designate this donation for use on these specific funds: q CHARLES BUTTS Law Student Scholarship in the amount of $_________ q Financial CLE SCHOLARSHIPS $___________ q For the COMANCHE CLUB in the amount of $_________ q F or _CHRISTINE S. CHENG MD MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________ q BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ q KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

__________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

__________________________________________________________________ City, State, Zip

_________________________________________________________________ __________________________________________________________________ Phone Email

Payment Method q Check payable to TCDLEI q Credit Card (Visa, Mastercard, Amex, or Discover) _________________________________________________________________ Credit Card Number

__________________________________________________________________ Expiration Date

_________________________________________________________________ Name On Card

__________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:______________________________ Check/cc: ________________________________ Entered By: ______________________________ Date: ___________________________

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TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 6808 HILL MEADOW DR., AUSTIN, TEXAS 78736