Capital Trial

Mental Health

Capital Trial Course Directors: Alyse Ferguson John Hunter Smith & Warren Wolf Rick Wardroup Mental Health Course Directors

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

MENTAL HEALTH SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours:

November 19, 2020 Livestream Event Alyse Ferguson and Rick Wardroup 6.25 Ethics: 1.0

Thursday, November 19, 2020 Time

CLE

8:30 am

Daily CLE Hours: 6.25 Topic

Ethics:1.0 Speaker

Opening Remarks

Alyse Ferguson and Rick Wardroup

8:45 am

1.0

Initial Interviews- Clients Diagnosed with Mental Illness or IDD

Nicky Boatwright

9:45 am

1.25

The Basics of Competency Litigation

Dr. Floyd Jennings

11:00 am 11:30 am

Lunch Break 1.0 ETHICS

12:30 pm

1.0

1:30 pm 1:45 pm 3:45 pm

Lunch Presentation: The Lawyer : Second Hand Trauma Terry Bentley Hill Investigations in MI/IDD cases

Nancy Piette

Break 2.0

Mental Health Policing: Using it

Jon O’Toole Scott Soland Matt Goheen

Adjourn

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

Texas Criminal Defense Lawyers Association

Capital Trial Table of Contents

Speaker

Topic Friday, November 20, 2020

Rick Wardroup

Junk Science/Their Charlatans and Our Experts

Mandy Miller

Where Did My Motion for New Trial Go?

Pat McCann

Responding to the Race-Based Challenge

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

Texas Criminal Defense Lawyers Association

Capital Trial Seminar November 20, 2020 Livestream

Topic: Junk Science/Their Charlatans and Our Experts Speaker:

Rick Wardroup 915 Texas Ave Lubbock, TX 79401-2725 rwardroup@tcdla.com (806) 763-9900

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

Junk Science – PCAST, Responses from Involved Parties, PCAST addendum, and Suggestions

Rick Wardroup Texas Criminal Defense Lawyers Association Curriculum Attorney rwardroup@tcdla.com

Forensic Science Generally The advent of DNA exonerations of convicted citizens focused a new light on the forensic “sciences” which had been used to win the convictions of these innocent people. Beginning in 2007, the National Academy of Sciences set out to determine the status of science in the courtroom and how it could be made more useful and reliable. The result was a report in 2009 which determined that, with the exception of DNA analysis, every other forensic discipline fell short in either scientific validation or reliability or both. This report was the work on scientists, lawyers and judges.

Thereafter, in 2015, the President’s Council of Advisors on Science and Technology, PCAST, became involved in determining what response there had been to the NAS report and how far toward a more reliable science, the courts had progressed. When the PCAST report was published, in 2016, there were responses and criticism from each of the disciplines evaluated in the report. Some of the complaints were thereafter addressed in the PCAST addendum in 2017 and some were abandoned by the experts in the field.

This collection of reports gives trial counsel the background to effect what forensic testimony is admitted and what limitations may, in face, must, be added to the testimony. The reports are not best used as learned treatises * but are very useful at Rule 104 or Rule 702/705 hearings held outside the presence of the jury before admissibility of the testimony is determined.

Law Relating to Expert Testimony Daubert is the Reason We Have to Teach the Court “In a case involving scientific evidence, evidentiary reliability will be based on scientific validity.” Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) ft. nt. 9. The arguments from practitioners of a given forensic method would be more important in a Frye v. U.S. 293 F. 1013 (D.C. Cir 1923) jurisdiction because it would inform whether the method had achieved general acceptance in the scientific community. Part of my argument will be that in many of the forensic methods reported in the PCAST report, there is no scientific community because the method isn’t scientific.

The language in Daubert is the reason that the PCAST focused on validity so much.

“The [judge’s] inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission.” PCAST p. 42. PCAST does not opine here on the legal standards, but seeks only to clarify the scientific standards that underlie them. PCAST p. 43.

Development of Science v. Development of Law Why is there a conflict between what constitutes good science and what constitutes good law?

Both science and the law set out to discover the truth of a situation as reliably and predictably as possible. “Yet there are important differences between the quest for truth in the courtroom and

the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.” Daubert, p. 596-597.

NAS Generally The result of the two year investigation into the state of forensic evidence in courts of the United States, can be summarized in its own words, “with the exception of nuclear DNA analysis, . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

Judge Harry Edwards, Senior Circuit Judge and Chief Judge Emeritus United States Court of Appeals for the D.C. Circuit served as the co-chair of the Committee on Identifying the Needs of the Forensic Science Community of the National Academy of Sciences. He reflected that he “started the NAS project with no skepticism regarding the forensic science community.” He “assumed that the forensic disciplines [were] well grounded in scientific methodology . . . .” He acknowledged being “surprisingly mistaken in what he assumed.” H.T. Edwards, The NAS Report on Forensic Science – What it Means for the Bench and Bar. It isn’t surprising to learn that most trial judges have similar, and equally misplaced, beliefs even over a decade after the publication of the report.

Judge Edwards quotes a former prosecutor and the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, “It does not matter how well forensic scientists abide by testing protocols or how reliable the techniques are, if the underlying science does not actually reveal what the expert says it does.” This recognizes the need and the desire on the part of most trial participants to move forensic methods to a more scientific basis where possible. This is consistent with the language used by the Supreme Court in Daubert.

New and better scientific evidence can direct more predictable and just results. Judge Edwards pointed out that trial courts were seeing the utility of the NAS Report, quoting Judge Gertner, “The NAS report suggests a different calculus – that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence.” United States v. Oliviera, Crim. No. 08-10104 (D. Mass. Mar. 8, 2010) (procedural order on trace evidence).

Judge Edwards refers to Melendez-Diaz v. Mass., 557 U.S. 305 (2009), pointing out that the Supreme Court said that “cross-examination was one means of assuring accurate forensic analysis.” not the only means.

PCAST Generally The report of the President’s Council of Advisors on Science and Technology was completed and published in an effort to determine how far toward “scientific” forensic pattern comparison analysis had progressed since the NAS Report in 2009. The report was published in September 2016. The only forensic methods considered in the report were: DNA analysis of single-source

and simple-mixture samples; DNA analysis of complex-mixture samples; bitemark analysis; latent fingerprint analysis; firearms analysis; footwear analysis; and hair analysis. The report separated methods of identification into objective methods, where the degree if human analysis was limited and subjective methods, where the human decision-making is primary. It determined that subjective methods needed to be validated by at least two black box tests showing what the error rate for the method was. Two were required in order to show that the testing was reliable and reproducible.

The Council considered first the foundational validity of the science being used for analysis.

This decision wasn’t a random selection as alleged by certain groups of prosecutors and associations of experts using the methods. It comes from Daubert’s requirement for “grounding in the methods and procedures of science.” p. 590. The Daubert court also recognized that an evidence rule 104 determination was the first step in determining admissibility: “This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” (emphasis added) p. 593-594. Finally, Justice Blackmun wrote “the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.” Footnote 9 reminds counsel that scientists “typically distinguish between ‘validity’ (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?).”

It is the “reasoning” behind the method which is analyzed in a foundational validity determination. The second test, for reliability of the forensic testimony, is whether the science was adapted properly to make the determination (in these cases, the comparison) for which it is being used. This is the reliability analysis referred to in Daubert. If the science has a basis and the application is an appropriate adaptation, the question becomes whether the method was applied properly in the case before the court. Last, but far from least, the witness’ testimony must be limited to the scope of the science. That is to say that there is some error rate in every known forensic method (though that rate may not be known) and testimony which overstates what the test conducted has proved is potentially more misleading to a jury than reliance on faulty science.

The analysis of foundational validity is pretty straightforward: are there peer reviewed articles describing the science used, is there a known error rateand are the tests which determined the error rate reproducible. It is the reliability part of the Daubert/Federal Rules of Evidence test which has drawn the most discussion from practitioners of the feature comparison methods.

PCAST took the position that the ONLY way to determine the reliability of a method is empirical evaluation and for methods which aren’t subject to an objective determination, error rates must be determined by “Black Box” testing, a testing method involving testing a system with no prior knowledge of its internal workings. A tester provides an input, and observes the output generated by the system under test. The tester is aware of what the true results of the testing should be and compares the tester’s results to calculate an error rate (part of the conflict around the PCAST report has been that the “black box” test only tests an individual analysist’s error rate and that it is inappropriate to aggregate the errors of a number of analysts and divide by the number of analysts because some are more skilled than others.)

It isn’t the purpose of this paper to suggest that we just push the PCAST report toward the court at a 702 hearing and rely on her to be able to separate the necessary guidance for her gatekeeping responsibility. Its purpose is to familiarize counsel with the report, the responses to the report and the addendum which followed the presentation of information purportedly overlooked or dismissed by the Council. Once counsel has a feel for where the science is in a relevant field, it is her responsibility to inform the court in order to facilitate effective gatekeeping. Judges generally aren’t scientists so the default position, “has it been admitted in the past. . . .” is the easiest ruling. Our responsibility is to explain how truly scientific identification methods, chief among them DNA analysis, have proved that the feature comparison methods have significant limitations in individuation assessment. The PCAST report was not prepared with the intent to exclude evidence which reliably supports law enforcement. Its purpose was to point out where the science had progressed and to take the exclusive development and vouching for different methods *** The report articulates what those of us who have tried cases with forensics experts for years intuited, there needs to be a separation of the entities which investigate crime and the scientists who report the results of their testing of evidence recovered. The report recognized that shortcomings in the evaluation of pattern comparison methods of identification “illustrate both the difficulty of these scientific evaluations and the reason they are best carried out by a sciencebased agency that is not itself involved in the application of forensic science within the legal system.” PCAST p. 13.

The opening line of the TDCAA response to the PCAST report is: “In September 2016, a relatively obscure federal commission issued a report calling into question nearly every forensic science discipline currently used by law enforcement.” The position taken by the association of Texas prosecutors isn’t “here is a report setting out what needs to be done to make the investigative processes we have used for years, many of which have resulted in conviction and execution of innocent people more responsive.” Their response is, “this bogus federally funded group is claiming that the forensics we rely on is invalid and we won’t be able to prosecute criminals and protect our society and we must contest its acceptance by the courts.” Fortunately, some of the forensic disciplines which aren’t inextricably intertwined with law enforcement, have taken the challenge of the report and responded in ways which remove the reservations about validity and/or reliability the council reported.

PCAST Addendum, Generally The addendum was released on January 6, 2017, fifteen months after the PCAST report. The addendum pointed out that “for subjective methods whose validity and degree of reliability has not been established by appropriate empirical studies. If a discipline wishes to offer testimony based on a subjective method, it must first establish the method’s validity and degree of reliability—which can only be done through empirical studies.” addendum p. 5.

It should be remembered that science has progressed over the years such that some sciences which were accepted as valid in the past have since come into disrepute. “Sciences” which aren’t any more

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Bullet Lead Analysis--A 2010 study of experimentally created bitemarks produced by known biters found that skin deformation distorts bitemarks so substantially and so variably that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter. p. 28

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Hair microscopy--The DNA analysis showed that, in 11 percent of cases in which the FBI examiners had found the hair samples to match microscopically, p. 28

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Bitemark (Texas has moved further along in the evaluation of this method and banned its use)

Determinations made by the Texas Forensic Science Commission, “First, there is no scientific basis for stating that a particular patterned injury can be associated to an individual’s dentition.

Any testimony describing human dentition as ‘like a fingerprint’ or incorporating similar analogies lacks scientific support. Second, there is no scientific basis for assigning probability or statistical weight to an association, regardless of whether such probability or weight is expressed numerically (e.g., 1 in a million) or using some form of verbal scale (e.g., highly likely/unlikely). . . . [I]n criminal cases in and outside of Texas, it is now clear they have no place in our criminal justice system because they lack any credible supporting data.”

“PCAST finds that bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards,” DNA Analysis of Single-Source or Simple Mixture Samples PCAST Report DNA analysis of a sample from a single individual is an objective method. In addition to the laboratory protocols being precisely defined, the interpretation also involves little or no human judgment. PCAST p. 70.

Once the known source is removed, the analysis of the unknown sample then proceeds as above for single-source samples. Like the analysis of single-source samples, the analysis of simple mixtures is a largely objective method. PCAST p. 70.

Response to PCAST There wasn’t much need for a response to the report from scientists using DNA analysis to interpret single-source samples or simple mixture samples where one of the contributors was known. The report, just as the NAS report had, found that the method was scientifically valid and objective, such that there wasn’t much human decisional involvement in the analysis of the sample. Therefore, this method of identification continued to be the “Gold Standard.”

Suggestions Most samples which are developed using PCR to amplify the amount of DNA in a sample are going to pick up some “touch DNA” along with the amplified target sample. When an unknown,

additional contributor is in the mix, the calculations of the likelihood ratio is likely to be effected.

The truth of the matter is, though, that a single-source sample or a simple mixture where one contributor is known, is usually devastating evidence, not easily attacked.

Fingerprint Analysis PCAST Report The Council determined that fingerprint analysis (friction ridge analysis) was a subjective method which was foundationally valid. The report expressed the opinion that the false positive rate was far higher than imagined and certainly far higher than expert witnesses acknowledged when they testified.

PCAST found that the validity as applied determination was effected by confirmation bias and contextual bias. The Council recommended having examiners mark and complete their analysis of the latent print before they look at any potential matching prints. During the comparison, examiners should document any additional data that they relied upon to make their decision. It was believed that this order of analysis would prevent circular reasoning which had been found to result in “finding” matching points only after comparing both prints.

The Council recommended limiting contextual bias by limiting communication between the analyst and the investigator to questions of logging evidence in. Without the opportunity to discuss the perceived importance and value of the latent print, contextual bias should be prevented.

PCAST also pointed out that the need for proficiency testing was significant and the proficiency tests should be incorporated in with other lab work such that the examiner wasn’t giving extra attention to test prints.

PCAST suggested that, to the degree the analysis continued to be subjective, empirical studies were necessary to determine error rates. The Report found only one “black box” testing could determine the appropriate calculation of error rates and that the error rate Finally, PCAST suggested that efforts already under way to make fingerprint analysis objective continue.

Response to PCAST The Science Advisory Board’s response to PCAST was released after the PCAST Addendum.

The Advisory Board suggested requiring analysts to follow the protocol suggested by PCAST with regard to both marking identifying points and discussion of case with investigators. The Board also suggested that analysts use sequential unmasking methods.

As related to testimony, the Board suggested the removed the word “individualizing” from reports and do not testify to zero error rate or “to a reasonable degree of scientific certainty.” By the time of the SAB response, May, 2018, these requirements had been in place for two years.

The Friction Ridge Subcommittee of the Organization of Scientific Area Committees responded to the report, generally agreeing with the need for further development of a “more formalized research agenda.” The subcommittee felt that PCAST erred by failing to credit all scientific testing of the method, regardless of the quality of its design or conduct. They responded that an absolute requirement that foundational validity be verified by black box testing could potentially restrict the allocation of funds for other methods of making the method more objective.

The subcommittee pointed out that discounting “experience” and “judgment” in subjective feature-comparison methods was inappropriate and suggested that “the emphasis should be on clearly distinguishing the source of such knowledge and transparently reporting its basis and associated limitations.” Practically speaking this is just what the PCAST report set out to do.

The subcommittee didn’t offer any proposal on how to credit experience or how to quantify it such that an analysis could be reasonably assessed. The proposal is a good one, but the absence of a plan to achieve it limits its utility.

The subcommittee took issue with the calculation of error rates done by PCAST. Most labs employ the ACE-V procedure to analyze prints and the last step is a validation step, where one examiner’s work is reviewed by another examiner. The point made by the subcommittee was that it is rare for the error made by one examiner to be made by a second one looking at the same print. The subcommittee also disagreed with PCAST’s belief that the error rate in practice was likely to be higher than during the tests reviewed by PCAST. The Council factored in an observer “Hawthorne” effect, examiners who knew that they were being tested were likely to perform better than analysists who aren’t or don’t know that they are being observed.

The subcommittee acknowledged that it doesn’t know an actual error rate for the forensic method but “believes strongly that is not on the level of magnitude reported by PCAST.” They agree with PCAST that there is a need to provide error rates but point out that the testing reported and reviewed by PCAST comprised prints of marginal value and argue that, if clearer prints were mixed in with the difficult ones, the error rate would move lower. They finally seem to accept that the error rates set out could reasonably be used before a factfinder with the proviso that “the error rate at hand may actually be lower than those observed in the black box studies considered by the PCAST.” The subcommittee response also pointed out what it called an error in the calculation of the error rate, saying that the false positive rate was 1.1% rather than 5.4%.

PCAST Addendum PCAST agrees that continued investment in exclusively black box research, where the validity and reliability of the forensic method has been verified, could be a waste of resources. The Council points out, though, that the forensics disciplines which haven’t been foundationally validated and which haven’t been reliability must offer evidence on those issues before they should be admitted.

Suggestions Review the process for the analysis of prints, particularly determining whether the identifying points selected by the examiner were chosen before they examined the known print or after. It is also useful to see what the proficiency rating earned by the examiner is and what kind of prints he was tested on (i.e. partial prints compared to rolled prints or prints enhanced by one technique or another). Finally, since most labs will be using the ACE-V process, it is appropriate to see whether the validation examiner disagreed with the primary examiner on the efficacy of any of the identifying points.

Firearms analysis (toolmarks) PCAST Report PCAST found only one test which it thought was appropriately designed to determine the validity and reliability of the method. It called for at least one more report of an empirical examination before it could approve it as foundationally valid and reliable. This requirement is necessary in order to show that the testing is reproducible. If a second evaluation of the testing procedure produced a significantly different error rate, the question would become which one to believe. This is the way science is done but for investigational purposes only, there may not be any such need.

Response to PCAST The Association of Firearm and Tool Mark Examiners (AFTE) responded on October 31, 2016, claiming that “competent examiners employing standard, validated procedures will rarely, if ever, commit false identifications or false eliminations.” The association argued that there had been decades of validation which proved that firearm and toolmark identification was scientifically valid.

AFTE acknowledges that “a global and numerically precise average of accuracy (error rate) would be useful in evaluating the value of an analytical technique, of greater relevance is the performance of the individual examiner as demonstrated by their participation in proficiency testing and similar testing.” What PCAST has recommended is doing one more properly designed “black box” evaluation of the method to prove that the one which is acceptable scientifically can be reproducible.

PCAST Addendum The Council acknowledges that licensing boards improve the quality of the performance of their members but, from a scientific perspective, “[T]here is no justification for accepting that a method is valid and reliable in the absence of appropriate empirical evidence.”

Only one appropriately designed black box study has been reported. A 2014 study commissioned by the Defense Forensic Science Center found a false-positive error rate of

The conflict we see between PCAST and the examiners and their associations is the difference in a science-based evaluation of validity and reliability and a results-driven evaluation of validity.

Suggestions The majority of past research has been done by AFTE. Even so, there was no reference of any empirical testing which verified the claim that examiners rarely, if ever, made errors in comparisons. “The issue for judges is whether one properly designed study, together with ancillary evidence from imperfect studies, adequately satisfies the legal criteria for scientific validity. Whatever courts decide, it is essential that information about error rates is properly reported.” Addendum p. 8.

Footwear Comparison (Analysis of Randomly Acquired Characteristics) PCAST Report The Council found “no empirical studies have been published to date that test the ability of examiners to reach correct conclusions about the source of shoeprints based on randomly acquired characteristics. Encouragingly, however, she noted that the first such empirical study is currently being undertaken at the West Virginia University.” PCAST p. 6.

“PCAST finds that there are no appropriate black-box studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks. Such associations are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.” PCAST p. 13 the major focus of this project was to report on similarity scores and population frequency estimates that result when comparing high quality (HQ) (exemplar) known matches (KM) and known non-matches (KNM), with a limited focus on the increased variability that results when considering mixed-media and crime scene-like (CS) conditions.

The issue is how well and under what circumstances examiners applying a given metrological method can reliably detect relevant differences in features to reliably identify whether they share a common source. Uniqueness studies, which focus on the properties of features themselves, can therefore never establish whether a particular method for measuring and comparing features is foundationally valid. Only empirical studies can do so. p. 62 Response to PCAST International Association of Identification denies that footwear examination fails to meet an evidence reliability standard. It also faults the report for not referring to the West Virginia black box testing and report which hadn’t been published at the time of the response.

Finally, the IAI accused PCAST of being biased. “In order for an evaluation process to result in positive movement forward there should be an expectation of impartiality, and must be conducted in a manner that includes sufficient knowledge of the discipline to be evaluated.”

Response of International Association for Identification.

PCAST Addendum The West Virginia report became final on May 31, 2017, four months after the PCAST addendum was published (January 6, 2017).

Suggestions Since the IAI response doesn’t refer to any scholarship which contradicts the PCAST report, it will be safe to rely on the PCAST determination of a failure in scientific validation to argue for the exclusion of testimony on the topic. Even with the West Virginia report being complete, it is still only one report, leaving this discipline in the same position as firearms and toolmarks, without evidence of reproducibility.

Microscopic Hair Examination PCAST Report PCAST wasn’t as thorough in its evaluation of this method, relying primarily on work done by the Department of Justice. The Report took issue with the DOJ’s evaluation and determined that microscopic hair comparison had not been shown to be foundationally valid and reliable. In 2012, the DOJ and FBI announced that they would initiate a formal review of testimony in more than 3,000 criminal cases involving microscopic hair analysis. PCAST p. 30. FBI examiners had provided scientifically invalid testimony in more than 95 percent of cases where examinerprovided testimony was used to inculpate a defendant at trial. PCAST p. 30.

Response to PCAST The trace evidence experts pulled back from claiming that microscopic hair comparison could be used for individuation and said only that it was a valuable screening tool.

PCAST Addendum Council found no empirical studies whatsoever that supported the scientific validity and reliability of the method.

Suggestions Hair microscopy should not be admitted for any purpose unless it is going to be corroborated by mDNA testing. There is no evidence that hair comparison passes the test for relevance. It

doesn’t realistically make the truth of an elemental fact or an evidentiary fact leading to an elemental fact more likely that without the evidence.

DNA Analysis of Complex Mixtures The production of the information analyzed by Probabilistic Genotyping is generated in the same fashion as it was for Combined Probability of Inclusion. PCR (Polymerase Chain Reaction) is the process by which a few copies of genetic material is replicated hundreds to thousands of times, producing a sample that is sufficient for the STR (Short Tandem Repeat) production of an electropherogram. The electropherogram is then input into a computer program which calculates the probabilities that an evidentiary question is correct depending on the evidence it has. That is to say, it starts with a completely random aggregation of genotypes which might be explained by the sample of alleles and then compares the likelihood if the latent sample is contributed by a person with a known genotype (regardless of whether every single allele from the known person has shown up in the electropherogram). The algorithm reports that, “It is * times more likely that this sample is a mixture of the suspect’s DNA and three other people than it is of four random people.”

PCAST Report Simply put, the problem identified by the PCAST report is that mixed samples “result in a DNA profile that superimposes multiple individual DNA profiles.” PCAST p. 8. PCAST determined that subjective interpretations of complex DNA samples had “not been established to be foundationally valid and is not a reliable methodology.” p. 8. It is the interpretation of a mixed sample using Combined Probability of Inclusion which asks an examiner to basically guess whether an individual’s DNA is included within the electropherogram.

PCAST went on to find that some objective, Probabilistic Genotyping (PG), methods had been found to be valid within “limited circumstances.” These limited circumstances, as determined by PCAST, were no more than three contributors with the least contributor adding at least 20% of the intact DNA. Response to PCAST The two primary PG programs currently in use, STRMix, which is being used by the Texas DPS and TrueAllele, which is widely used in other jurisdictions, responded differently to the challenge of the report. STRMix produced 31 validation studies of its program and submitted it to PCAST for consideration. TrueAllele responded that it “was impossible for the likelihoodration approach in his software to incorrectly implicate an individual.”

PCAST Addendum There was no significant change in the addendum from the limitations set out in the PCAST report.

Suggestions The science behind PG is sound and defensible. It does have an error rate and that fact should be acknowledged by a witness. If there is an error in interpretation, it is most likely going to come from contamination of the sample. Contamination can come either from the gathering of a sample or the storage thereof. The murder case referred to in the addendum, where the two programs generated differing results may be useful in contesting admission of a report from either. Mark Perlin of TrueAllele has offered to run his program on an electropherogram which has been analyzed by STRMix at no charge to see if the results are comparable. If the results differ, he will consult on the case for a fee.

Rules for Cases with DNA Mixture Evidence 1. Work backwards – start with the sample and carefully analyze every step that led to it being where it is being tested. Who located the sample, how was it collected, was there a preliminary test done, by whom. This investigation may lead to chain of custody challenges, discovery of tampering or contamination, etc.

2. If the analysis was done applying Random Match Probability or Combined Probability of Inclusion, have it recalculated.

3. See the electropherogram.

4. Check the laboratory’s accreditation and records.

5. Check the analyst’s proficiency records and licensing.

6. Learn what the analyst knew about the offense when she ran the sample and what other samples preceded and followed it. (Confirmation bias)

Texas Criminal Defense Lawyers Association

Capital Trial Seminar November 20, 2020 Livestream

Topic: Where Did My Motion for New Trial Go? Speaker:

Mandy Miller

2910 Commercial Center Blvd # 103-201 Katy, TX 77494-6583 mandy@mandymillerlegal.com (832) 900-9884

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

Where did my Motion for New Trial Go? Texas Criminal Defense Lawyers Association Capital Trial Seminar November 20, 2020 Once your client is convicted, obtaining relief on the post-conviction level is an uphill battle. And the odds of obtaining relief through a motion for new trial are certainly stacked against us. In this presentation, I outline what responsibilities fall on the trial attorney and which fall on the appellate attorney when it comes to investigating and filing a motion for new trial. I also will lay out what I believe is necessary for a successful motion. At the end of the paper, you will find examples of some of the documents that I mention in the presentation. I hope that when trial attorneys and appellate attorneys work together, we can increase our clients’ chances of winning motions for new trial.

The Trial Attorney’s Responsibilities Trial is long, hard, and exhausting. By the end, the trial attorney is ready for a well-deserved break. But before you take off, there are a few things that you must do to make sure that your client’s rights are protected and to protect yourself from a potential ineffective assistance of counsel claim in the future.

1. Notice of Appeal First, file a notice of appeal. If your client has just been sentenced to death, appeal is automatic, and the clerk should take care of the notice. TEX. R. APP. PRO. 25.2(b). However, I advise you double check on this, especially if you are in a county that has not recently tried a capital case where death was imposed.

In all cases, notice of appeal must be filed within 30 days of the sentence being imposed or suspended in open court. TEX. R. APP. PRO. 26.2(a)(1). If a timely motion for new trial is filed, the notice of appeal must be filed within 90 days of the sentence being imposed or suspended in open court (**note, this is NOT 90 days from the filing of the motion for new trial, but 90 days from sentencing). TEX. R. APP. PRO. 26.2(a)(2).

I advise all trial attorneys prepare a notice of appeal prior to sentencing so that it can be filed immediately after sentencing. The notice of appeal must be written and express a desire to appeal the judgment or order. TEX. R. APP. PRO. 26.2(c)(1), (2). This requirement is not satisfied where the clerk of the trial court reduces the defendant’s oral notice of appeal to writing. Hammond v. State, 746 S.W.2d 278, 279 (Tex. App.-

Houston [14th Dist.] 1988, pet. ref’d). The notice should also include the name of your client, the court, and be signed by either the client, the trial attorney, or both. If the initial notice of appeal is defective, it may be amended any time before the appellant's brief is filed. Bayless v. State, 91 S.W.3d 801 (Tex. Crim. App. 2002).

You must file the notice of appeal with the trial court clerk, not the appellate court. But if you mistakenly file the notice in the wrong place, the appellate clerk will note when the notice was filed and forward it to the trial court clerk. TEX. R. APP. PRO. 26.2(c)(1) 2. Motion to Withdraw Next, file a motion to withdraw from the case, reassert your client’s indigence, and request that appellate counsel be appointed. Under the Sixth Amendment, an indigent defendant is entitled to appointed counsel at every “critical” stage of a criminal prosecution absent a valid waiver. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In 1978, the Texas Court of Criminal Appeals held that a hearing on a motion for new trial is a critical stage of the proceedings at which a defendant is entitled to counsel. Trevino v. State, 565 S.W.2d 938 (Tex. Crim. App. 1978). It wasn’t until 2007 that the Court of Criminal Appeals acknowledged that the time for filing a motion for new trial was also a critical stage during which a defendant is constitutionally entitled to the effective assistance of counsel in filing a motion for new trial. Cooks v.

State, 240 S.W.3d 906 (Tex. Crim. App. 2007).

What does this mean for the trial attorney? If you fail to withdraw from the case, you will be considered the attorney during the critical time for investigating and filing the motion for new trial. If you either do not investigate the possibility of filing a motion for new trial, or advise the client of his/her right to investigate and file a motion for new trial and he/she declines, you may be found ineffective.

How can the trial attorney help with a motion for new trial?

Have appellate counsel appointed pretrial Take good notes during the trial that keep track of appellate issues, off the record occurrences, and any conversations with jurors.

Have your file ready. If possible, keep it in electronic form. This prevents you from having to copy it and makes it easier to transfer it to the appellate attorney.

Keep a copy of the jury charge and objections to the charge. Also, retain any information you may have on the venire.

Perfect the appeal and withdraw Motions for New Trial The trial court can grant a motion for new trial on guilt, punishment, or both.

TEX. R. APP. PRO. 21.1. A motion for new trial is not generally required to preserve error on appeal. However, a motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record. TEX. R. APP. PRO. 21.2.

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons: Except in a misdemeanor case in which the maximum possible punishment is a fine when the defendant has been unlawfully tried in absentia or has been denied counsel.

When the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights.

When the verdict has been decided by lot or in any manner other than a fair expression of the jurors’ opinion.

When a juror has been bribed to convict or has been guilty of any other corrupt conduct.

When a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant's innocence has been intentionally destroyed or withheld, thus preventing its production at trial.

When, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result.

When the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or When the verdict is contrary to the law and the evidence.

TEX. R. APP. PRO. 21.3

A motion for new trial must be filed 30 days after sentence is imposed or suspended in open court. TEX. R. APP. PRO. 21.4(a). The motion must be sworn to by someone with personal knowledge of the facts in the motion. Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993). If affidavits are not attached, the trial court does not abuse its discretion in denying a hearing on the motion.

The Texas Rules of Appellate Procedure require that the motion be presented to the trial court within 10 days of filing unless the trial court permits it to be presented and heard within 75 days from the time sentence was imposed or suspended in open court. “Presented” means that the motion is brought to the trial court’s attention so that it may be reviewed and be set for a hearing, if necessary. Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App. 1998). Include a presentment page in your motion for new trial and have it signed by the judge. You can then efile this page and you are covered.

Appellate Attorney’s Responsibilities Visit the client as soon as possible and remember to bring an array of releases.

These include a release for the trial attorney to give you the file, and any releases so that you can obtain your client’s records.

File a motion for funding for an investigator. 30 days is not enough time to properly investigate and file a motion for new trial. You will find it much easier if you get the help you need immediately.

In certain cases, file a motion to release the juror information or for the District Attorney to turn over Brady evidence.

Finally, contact the defense team and the court staff. This includes the trial attorney, investigator, mitigation specialist, and bailiffs. They have a wealth of information that could help you streamline your investigation.

Drafting your Motion for New Trial The motion must allege facts outside of the record. It is an abuse of discretion for the trial court to deny the defendant a hearing on his motion for new trial when the motion raises matters that cannot be determined from the record. Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993).

Beware of the “interest of justice.” A judge may grant or deny a motion for new trial “in the interest of justice,” but justice means in accordance with the law. A judge may not grant a new trial on mere sympathy, an inarticulate hunch, or simply because

he believes the defendant received a raw deal or is innocent. State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007) Support allegations with an affidavit by someone with personal knowledge.

The hearing on your motion for new trial Always request a hearing on your motion for new trial. How that hearing looks will largely depend on your strategy. The court may receive evidence by affidavit or otherwise. TEX. R. APP. PRO. 21.7. But the motion for new trial is not self-proving, so you must enter affidavits into evidence so that the appellate court can properly consider your motion. Schneider v. State, 594 S.W.2d 415, 418 (Tex. Crim. App. 1989). If you have raised an ineffective assistance of counsel claim and trial counsel has provided you with a favorable affidavit, you may determine it is not in the client’s best interest to have the trial attorney testify. In other instances, your claims may benefit from being able to cross-examine witnesses. No matter what you decide, make sure the affidavits attached to your motion are entered into evidence on the record.

The burden of proof at the hearing is on the defendant. Lera v. State, 165 S.W.2d 92, 93 (Tex. Crim. App. 1942).

The ruling on your motion for new trial The court must rule on a motion for new trial, by written order, within 75 days after imposing or suspending sentence in open court. TEX. R. APP. PRO. 21.8(a). A motion not timely ruled on by written order will be overruled by operation of law after the 75 days. TEX. R. APP. PRO. 21.8(c) In ruling on a motion for new trial, the court may make oral or written findings of fact. The granting of a motion for new trial must be accomplished by written order.

A docket entry does not constitute a written order. TEX. R. APP. PRO. 21.8(b).

Make sure all of your legal grounds for granting the motion for new trial are included in your pleading and filed within 30 days of sentencing. Grounds alleged only in a legal memorandum filed 30 days after sentencing but not alleged in the motion for new trial may not be the basis for the granting of relief. State v. Zalman, 400 S.W. 3d 590 (Tex. Crim. App. 2013).

The 75-day time limit for filing motion for new trial does not impose any time limit for the trial court to rescind a previous order granting a new trial, and thus trial court could rescind its order granting a new trial over 75 days after imposing or

suspending the defendant’s sentence. Kirk v. State, 454 S.W.3d 511 (Tex. Crim. App. 2015).

The premature filing of the appellate record in the court of appeals will not divest the trial court of jurisdiction to hear a motion for new trial that is timely filed and presented. Taylor v. State, 163 S.W.3d 277 (Tex. App.--Austin 2005, pet. ref’d).

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

NOTICE OF APPEAL TO THE HONORABLE JUDGE OF SAID COURT: Today, _______________, John Smith gives Notice of Appeal of his conviction and sentence issued on _______________________.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email ______________________ Client Signature

______________________ Client printed name

1

2

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

§ IN THE _____TH DISTRICT COURT § § OF § § CONVICTING COUNTY, TEXAS

MOTION TO WITHDRAW The defendant, __________________, pled not guilty in the above numbered and styled cause and proceeded to a trial by jury. The jury rendered a verdict of guilt on _____________. Sentence was imposed in open court on ______________.

Undersigned counsel’s representation has ceased and she requests that she be permitted to withdraw as the defendant’s attorney of record. Counsel also requests that the defendant, if indigent, be appointed counsel to represent him on appeal.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email

ORDER This Court GRANTS counsel’s motion and orders that _________________ be removed as attorney of record for the defendant in the above numbered and styled cause.

______________________________ PRESIDING JUDGE ___TH DISTRICT COURT CONVICTING COUNTY, TEXAS

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

§ IN THE _____TH DISTRICT COURT § § OF § § CONVICTING COUNTY, TEXAS

PAUPER’S OATH ON APPEAL Now comes, John Smith, defendant in the above styled and numbered cause, and states under oath that he is without funds, property or income. The defendant petitions the court for appointed appellate counsel to represent him and that a free record be provide to him for purposes of appeal.

______________________________ John Smith SUBSCRIBED AND SWORN to before me, this ____ day of ____________, 20__.

______________________________ DEPUTY DISTRICT CLERK ___TH DISTRICT COURT CONVICTING COUNTY, TEXAS

ORDER On _________________ the court conducted a hearing and found the defendant is indigent. The court ORDERS that ________________________ is appointed to represent the defendant on appeal. The court reporter is ORDERED to prepare and file the reporter’s record without charge to the defendant.

It is further ordered that the clerk of this court mail a copy of the order to the court reporter, _______________________, by certified mail, return receipt requested.

______________________________ PRESIDING JUDGE ___TH DISTRICT COURT CONVICTING COUNTY, TEXAS

AUTHORIZATION FOR RELEASE OF LEGAL FILES __________________ __________________ __________________ You are hereby authorized to release any and all documents, including but not limited to pleadings, correspondence, notes, medical records and reports, investigative reports, and all other information written or otherwise recorded, contained in the file of (or relating to my legal case involving) __________________ (Cause No. _____________), to ____________________________, or to any representative, attorney or investigator from said firm. In addition to the case files and any investigation regarding the above cases, I specifically authorize the release to said individuals of information pertaining to confidential attorney-client communications, medical treatment, drug and alcohol abuse and related treatment, and psychological and psychiatric treatment, if such are a part of your records. In addition, I authorize _________________ or any representative, expert, or investigator associated with __________________ to communicate with ____________________ regarding the investigation and trial in cause no. __________________.

THIS AUTHORIZATION HEREBY REVOKES ANY AND ALL PRIOR AUTHORIZATIONS TO RELEASE INFORMATION CONCERNING ME, EXCEPT AUTHORIZATIONS PROVIDED BY LAW. YOU ARE REQUESTED TO DISCLOSE NO INFORMATION TO ANYONE ELSE WITHOUT MY PRIOR WRITTEN AUTHORIZATION. DATED this ____ day of ________________, 20__. _____________________________ Client Signature

_____________________________ Client Name (Printed)

AUTHORIZATION FOR RELEASE OF CONFIDENTIAL INFORMATION AND RECORD IN COMPLIANCE WITH THE HEALTH INSURNAC PORTABILITY AND ACCOUNTABILITY ACT OF 1996, 42 U.S.C. 1320d AND 45 C.F.R. 160-164 I, _________________________, by this release or a facsimilie thereof, authorize and request the following entity: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ to release to _______________, and her designated representatives, all protected information, from the following period(s): ________________ for the purpose of review and evaluation in connection with a legal case. You are specifically authorized to photocopy these records and to release copies to this office or its representatives. I expressly request that the designated record custodian of all covered entities under HIPPA identified above disclose full and complete protected information including the following: • All medical records, meaning every page in my record, including but not limited to, office notes, face sheets, history and physical, consultation notes, inpatient, outpatient, and emergency treatment, all clinical charts, reports, order sheets, progress notes, nurse’s notes, social worker records, clinic records, treatment plans, admission records, discharge summaries, request for and reports of consultations, documents, correspondence, test results, statements questionnaires/histories, photographs, videotapes, telephone messages, and records received by other medical providers. All autopsy, laboratory, histology, cytology, pathology, immunohistochemistry records and specimens; radiology records and films including CT scan, MIR, MRA, EMG, bone scan, myleogram; nerve conduction study, echocardiogram and cardiac catheterization results, videos/CD’s/films/reels and reports. All pharmacy/prescription records including NDC numbers and drug information handouts and monographs. All billing records including all statements, insurance claim forms, itemized bills, and records of billing to third party payers and payment or denial of benefits.

• All mental health records, including but not limited to, counseling, testing and evaluation, raw data, rest scores, psychological, psychiatric, group therapy, nurse notes, physician notes, progress reports, ward notes, admission and discharge summaries, drug and alcohol rehabilitation programs, social worker records, request for and reports of consultations, documents, correspondence, questionnaires, histories, videotapes, and records received by other mental health providers. • All disability, Medicaid or Medicare records including claim forms and record of denial of benefits.

In consideration of this disclosure of otherwise confidential information, I hereby release you (in your individuals and/or institutional capacity) from any and all liability arising from such disclosure to these designated parties. I understand the information to be released or disclosed may include information relating to sexually transmitted diseases, acquired immunodeficiency syndrome (AIDS), or human immunodeficiency virus (HIV), and alcohol and drug abuse. I authorized the release or disclosure of this type of information. This authorization is given in compliance with the federal consent requirements for release of alcohol or substance abuse records of 42 CFR 2.31, the restrictions of which have been specifically considered and expressly waived.

You are authorized to release the above records to the following office and its representatives: Law Firm, PLLC 123 Main Street City, TX 00000 (P) 000-000-0000, (F) 000-000-0000

I understand the following: that I have a right to revoke this authorization in writing at any time, except to the extent information has been released in reliance upon this authorization and that the information released in response to this authorization may be re-disclosed to other parties. I also understand that treatment, payment, enrollment or eligibility for benefits may not be conditioned on obtaining the authorization if such conditioning is prohibited by law, or if conditioning is provided by law, a statement that the patient understands the consequences of refusing to sign.

Additionally, I authorize any representative or employee, past or present, from the above named facility to speak with any representative of the above referenced office, about any of my records, or any other personal recollections, opinions, or insights they have about me or my history. Any facsimile, copy or photocopy of this authorization shall authorize you to release the records requested herein. This authorization shall be in force and effect until two years from the date of execution.

Name:

_________________________

DOB:

_________________________

SSN:

__________________________

Date:

__________________________

I, ________________ (TDCJ #_____________, DOB ______________), being presently incarcerated in the _______________________, in _________________ County, Texas, declare under penalty of perjury that the foregoing is true and correct.

Executed on this _______ day of, _________________, 20__.

______________________________ Signature

CONSENT TO RELEASE STUDENT RECORDS UNDER THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (20 U.S.C § 1232(g) __________________________ Student Name (Please Print)

_____________________________ Student I.D. Number or SSN

In accordance with the Family Educational Rights and Privacy Act of 1974 (FERPA), the undersigned student hereby permits ____________________________ ____________________________ ____________________________ to disclose the information specified below to the following office and its representatives: • Law Firm, PLLC • 123 Main Street • City, TX 00000 • (P) 000-000-0000, (F) 000-000-0000 • All Financial Aid Records (records include: status of file, award and disbursement of funds information, • Satisfactory Academic Progress status, income information, and any other information contained in the application or financial aid file).

• All Academic/Transcript Records (records include: transcripts, admission and registration information, schedule documentation contained in the academic records).

• All Student Account Records (records include: amount for tuition and fees, sources of payment for tuition and fees, refund information, records hold information as it relates to parking tickets, library fines, financial aid repayments and any other accounts receivable information contained in student account records.

• Instructor/Classroom Records (records include: attendance, progress reports, test and homework scores if available. Please note: instructors are not required to take attendance or provide progress reports, and retain only those records which make up the file grade. FERPA pertains to the release of records.

I understand the information may be released orally or in the form of copies of written records, as preferred by the requester. This authorization will remain in effect from the date it is executed until revoked by me, in writing, and delivered to the educational facility identified above.

I, ________________ (TDCJ #_____________, DOB ______________), being presently incarcerated in the _______________________, in _________________ County, Texas, declare under penalty of perjury that the foregoing is true and correct.

Executed on this _______ day of, _________________, 20__.

_______________________________ Signature

RELEASE OF RECORDS I, ___________________, by this release or a facsimile thereof, authorize and request the following entity: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ to release to ____________________, and her designated representatives, any employment records, including but not limited to records indicating the terms of employment, payroll, time, and any disciplinary records.

In consideration of this disclosure of otherwise confidential information, I hereby release you (in your individuals and/or institutional capacity) from any and all liability arising from such disclosure to these designated parties.

You are authorized

to release the above records to the following office and its representatives: Law Firm, PLLC 123 Main Street City, TX 00000 (P) 000-000-0000, (F) 000-000-0000 I understand the following: that I have a right to revoke this authorization in writing at any time, except to the extent information has been released in reliance upon this authorization and that the information released in response to this authorization may be re-disclosed to other parties.

Additionally, I authorize any representative or employee, past or present, from the above named facility to speak with any representative of the above referenced office,

about any of my records, or any other personal recollections, opinions, or insights they have about me or my history. Any facsimile, copy or photocopy of this authorization shall authorize you to release the records requested herein. This authorization shall be in force and effect until two years from the date of execution.

Name:

____________________

DOB:

____________________

SSN:

____________________

TDCJ or other jail#:

____________________

I, ________________ (TDCJ #_____________, DOB ______________), being presently incarcerated in the _______________________, in _________________ County, Texas, declare under penalty of perjury that the foregoing is true and correct.

Executed on this _______ day of, _________________, 20__.

______________________________ Signature

CAUSE NO. _____________ THE STATE OF TEXAS

§

IN THE _____TH DISTRICT COURT

§ V.

§

OF

§ JOHN SMITH

§

CONVICTING COUNTY, TEXAS

MOTION TO UNSEAL JUROR INFORMATION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, John Smith the defendant, by and through his counsel of record in the above-titled and captioned cause with this Motion to Unseal Juror Information and as grounds shows the Court the following: Texas Rule of Evidence 606 provides that “[u]pon an inquiry into the validity of a verdict…a juror may testify…whether any outside influence was improperly brought to bear upon any juror.” Rule 606(b) attempts to strike a balance between the desire to rectify verdicts tainted by irregularities in the deliberative process and the desire to protect jurors and promote the finality of judgments. Hicks v. State, 15 S.W.3d 626 (Tex. App.--Houston [14th Dist.] 2000, pet. ref’d), citing Sanders v. State, 1 S.W.3d 885 (Tex. App.--Austin 1999, no pet.). “[I]nformation collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror’s home

address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel.” However, a party to the trial may apply to have the juror information released and the court shall, on a showing of good cause, permit disclosure of the information sought. TEX. CODE CRIM. PRO. ANN. art. 35.29.

List your reasons for needing the information below. I have included an excerpt from a case where the judge granted my request.

Appellant was convicted of burglary of a habitation on May 17, 2018, and sentenced to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice that same day. During the trial, juror John Hoang, admitted to conducting outside research. (Appendix A). The trial court questioned that juror regarding the research, but failed to question the other jurors how that research may have affected their deliberations and verdict. (Appendix A).

Further, Mr. Hoang contacted the assistant district attorneys who tried the case on May 17, 2018, after the verdict was entered 1. (Appendix B). Mr. Hoang appears to reveal that the jury failed to follow the court’s instructions that the burden always remain on the State.

1

This correspondence was provided to appellant’s counsel on June 11, 2018.

The defendant seeks the release of the juror information, to counsel for appellant and her investigator, so that counsel may properly investigate whether the jurors were subjected to any improper influence or corruption.

WHEREFORE, PREMISES CONSIDERED, defendant prays this Honorable Court enter an order releasing the juror information.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of this motion was served on a lawful representative of the Convicting County District Attorney by eservice on __________________.

_________________________ Attorney

CAUSE NO. _____________ THE STATE OF TEXAS

§

IN THE _____TH DISTRICT COURT

§ V.

§

OF

§ JOHN SMITH

§

CONVICTING COUNTY, TEXAS

ORDER After considering the defendant’s Motion to Unseal Juror Information, defendant’s motion is GRANTED. This Court hereby Orders the District Clerk to unseal the juror information sheets on all jurors who were selected and seated during the trial and provide access to this information to the attorney of record on appeal.

Signed on ________________. _________________________ Presiding Judge

CAUSE NO. _____________ THE STATE OF TEXAS

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

V. JOHN SMITH

MOTION FOR NEW TRIAL Comes now John Smith, defendant in the above styled and numbered cause and files this motion for new trial pursuant to Texas Rule of Appellate Procedure 21. In support, Defendant shows the following: STATEMENT OF THE CASE Defendant was charged with _________________.

The defendant was

convicted of the charged offense. The jury sentenced the defendant to ___ years confinement in the Institutional Division of the Texas Department of Criminal Justice.

JURISDICTION A Motion for New Trial is timely if filed on or before __________________.

See TEX. R. APP. P. 21.4(a).

1

EVIDENTIARY HEARING Defendant is entitled to a hearing on this motion because it raises issues outside of the trial record, is verified by the attached affidavit, and is timely filed and presented to this Court. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).

REASONS FOR GRANTING A NEW TRIAL I am including several grounds that have been raised in the past, with varying degrees of success.

The defendant’s right to a fair trial and the effective assistance of counsel were violated due to prosecutorial misconduct. *** The trial court erred in failing to properly instruct the jury on self-defense when the defensive issue was raised at trial. *** The evidence is insufficient to support the jury’s verdict. *** The trial court violated the defendant’s right to due process and a fair trial when he failed to question the entire jury as to whether they were aware of, and influenced, by a juror’s own outside research, that was conducted in contradiction to the court’s instructions. ***

2

Newly-discovered evidence reveals that the jury failed to follow the court’s instructions regarding its duty and the State’s burden of proof. *** A juror has revealed that, since conviction, a true verdict did not render. *** Appellant’s plea to 25-years confinement was not made knowingly, voluntarily, and intelligently. *** The trial attorney failed to give effective assistance of counsel when he failed to investigate the crime at hand. He was appointed and failed to ask for an investigator, any experts, withdrew the one motion he did file on suppression, failed to request any assistance or perform any work prior to trial.

ARGUMENT The following is an except from a motion for new trial based upon prosecutorial misconduct The Sixth Amendment of the United States Constitution guarantees an accused the right to a fair proceeding. For Sixth Amendment purposes, “a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

3

The following is a summary of the offense taken from the police report: One complainant, XG, reported that she was walking home from a friend’s house at 5:00 p.m. She was approached by two black males holding semi-automatic handguns in her driveway. The men were later identified as MS and TS. XG was forced inside of her home where she and her nephew were held at gun point. The men then led XG and her nephew room to room while they collected property. XG was forced into a bathroom by MS. MS ordered XG to remove her clothing. MS then exposed his penis and began masturbating. MS ordered XG to place her hands on the counter and face away from him. TS ejaculated into a white towel. After about one hour, the men left the home. At 6:21 p.m., law enforcement was led to a vehicle suspected of being involved in the offense. MI and KW were in the back seat. MS and TS were detained coming out of a nearby store. The complainants’ belongings were located in the vehicle, along with handguns, and the white towel.

MS, TS, and KW were all sentenced before the defendant, MI. (Appendix A).

At no time did XG make any statements inconsistent with the above rendition of how the offense occurred. (Appendix A). Prior to the defendant’s sentencing hearing, the prosecutor met with XG for approximately one hour. (Appendix A). During direct examination, XG testified consistently with her previous statements. (Appendix A).

The prosecutor then asked her, pointedly, whether MS penetrated her vaginally or anally. (Appendix A). For the very first time, XG stated that MS placed his penis in her vagina. (Appendix A). This testimony was a surprise to the defense and was never revealed prior to this time. (Appendix A).

Courts historically have looked unfavorably on “trial by ambush.” See Jaubert v.

State, 74 S.W.3d 1, 4-5 (Tex. Crim. App. 2002) (Cochran, J., concurring) (“[T]he letter of the law is not always a perfect reflection of the spirit of the law, ... [which] is to ensure 4

that Texas criminal proceedings are not a contest of clever gamesmanship or trial by ambush. There is very little formal pretrial discovery mandated in Texas criminal proceedings, but our Rules of Evidence are drafted to ensure that Texas criminal practitioners remain gentlemen and gentlewomen who do not spring evidentiary surprises on their adversaries.”).

The State’s failure to disclose this highly prejudicial fact prior to the hearing deprived the defendant of her right to a fair trial and the effective assistance of counsel.

Counsel for the defendant was unable to investigate the veracity of XG’s new claim or properly counsel his client, considering this new offense. In Riggs v. United States, the defendant was charged with the uttering of and dealing in counterfeit $20 federal reserve notes. Riggs v. United States, 280 F.2d 750, 751-52 (5th Cir. 1960). A witness testified to alleged transactions involving passing of counterfeit bills other than those referred to in the indictment. Id., at 753. The 5th Circuit found that “the defendant was deprived of a fair trial by the cloak and dagger manner of getting this surprise testimony into evidence…” Id., at 754. …

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CONCLUSION WHEREFORE, Defendant prays that this Court set this matter for an evidentiary hearing, and at the conclusion, grant this motion for new trial.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email CERTIFICATE OF SERVICE This is to certify that a true and correct copy of this motion was served on a lawful representative of the Convicting County District Attorney by eservice on _________________.

_________________________ Attorney

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Appendix A

7

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

PRESENTMENT Counsel for Defendant presented the motion for new trial in the above-cited cause numbers on __________________, within 10 days from the date of filing. _________________________ Presiding Judge

8

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

ORDER FOR HEARING After reviewing the pleading and hearing argument of counsel, if any, this Court orders that a hearing on the matter be set for ______________________.

_________________________ Presiding Judge

9

Texas Criminal Defense Lawyers Association

Capital Trial Seminar November 20, 2020 Livestream

Topic: Responding to Race-Based Challenge Speaker:

Pat McCann

700 Louisiana St Ste 3950 Houston, TX 77002-2859 writlawyer@justice.com (713) 223-3805

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

Re-invigorating race based challenges in Texas death penalty cases

By Patrick F. McCann Introduction This is a topic I can best describe as pouring wine into a decanter to let the topic/wine, in this case, race, get some air.

If you believe that the criminal injustice system is in any way raceneutral or even fair on the topic of race, this paper is not for you. If you think race did not make a difference in your case in any way, this paper is not for you. If you think in the quiet moments to yourself that most people in Texas, or anywhere, are now free from racial bias and make decisions based upon objective criteria, then by all means, stop reading this and go enjoy some golf or a nice walk. If, on the other hand, you think that, perhaps, people have not progressed as far as we might hope, then read on. By the way, nothing in here is an original thought. I have pirated from so many cases and other people’s thoughts I may forget to list them, but suffice to say I owe many people thanks for their help on this.

Let’s see what we can come up, shall we?

I.

Step one: change your own thinking 1

I am urging a complete change in how we have done race challenges. I am urging a start to finish, comprehensive systemic set of challenges, from how the police conduct their business, to how the elected DA chooses the folks who die, to challenging how courts handle future dangerousness, and to how the Board of Pardons and Paroles/Governor handles clemency. This will require research.

Why not ask for historical data from the police in your town about how many blacks versus whites were indicted for homicide over the last ten or twelve years? Get a baseline for bias.

Why not ask the press “Why is the DA reluctant to open up their process to community review to help eliminate bias in the selection for death eligible prosecutions?�

Why not ask for specific rulings in pre-trial motions on state equal protection and due course of law based on race? Why not use data analytics against prejudiced judges in a motion to recuse?

Why not challenge the CCA in its use/misuse of its review of future dangerousness based upon racial historical data? Who cares if they get angry? They are going to deny your appeal anyway.

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The point is that if you really want to protect your client, be they black, Hispanic, white, Asian, man or woman, then change your thinking and, as the troops would say “Embrace the suck.”

II.

Grand jury – it all starts with the indictment

The Supreme Court has repeatedly rejected arguments that a conviction may stand despite racial discrimination in the selection of the grand jury. See, e. g., Neal v. Delaware, 103 U.S. 370, 396 (1881); Bush

v. Kentucky, 107 U.S. 110 (1883); Gibson v. Mississippi, 162 U.S. 565 (1896); Carter v. Texas, 177 U.S. 442 (1900); Rogers v. Alabama, 192 U.S. 226 (1904); Pierre v. Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940); Cassell v. Texas, 339 U.S. 282 (1950); Eubanks v.

Louisiana, 356 U.S. 584 (1958); Arnold v. North Carolina, 376 U.S. 773 (1964); Alexander v. Louisiana, 405 U.S. 625 (1972). In 1979 the Supreme Court specifically rejected any harmless error review of such a problem in the fundamental charging instruments. Rose v. Mitchell, 443 U.S. 545 (1979).

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Intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. As pointed out in Rose

v. Mitchell, alternative remedies are ineffectual. Federal law provides a criminal prohibition against discrimination in the selection of grand jurors, 18 U.S.C. § 243. Has anyone ever heard of such a prosecution?

The other putative remedy for grand jury discrimination is 42 U.S.C. § 1983, which, in theory, allows redress for blacks who have been excluded from grand jury service. See Carter v. Jury Comm'n of Greene

County, 396 U.S. 320 (1970). These suits are also extremely rare, undoubtedly because the potential plaintiffs, eligible blacks not called for grand jury service, are often without knowledge of the discriminatory practices and without incentive to launch costly legal battles to stop them.

The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense — all on the 4

basis of the same facts. Moreover, "[t]he grand jury is not bound to indict in every case where a conviction can be obtained." United States v.

Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly, J., dissenting).

When the trial judge is discovered to have had some basis for rendering a biased judgment, his actual motivations are hidden from review, and we must presume that the process was impaired. See Tumey

v. Ohio, 273 U.S. 510, 535 (1927) (reversal required when judge has financial interest in conviction, despite lack of indication that bias influenced decisions). Similarly, when a petit jury has been selected upon improper criteria or has been exposed to prejudicial publicity, The Supreme Court has required reversal of the conviction because the effect of the violation cannot be ascertained. See Davis v. Georgia, 429 U.S. 122 (1976) (per curiam); Sheppard v. Maxwell, 384 U.S. 333, 351-352 (1966).

Like these fundamental flaws, which never have been thought harmless, discrimination in the grand jury undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review. So, win at Grand Jury, win the whole shebang. Worth a shot, right?

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Some practical questions are raised in this. One the new grand jury selection statute prohibits the use of the key man system but also prohibits gathering data on the names/ethnicities of the grand jurors.

This obviously makes proving discrimination impossible, so the first step is to get an order for the names/grand juror info cards under the district courts constitutional powers.

It also means you will need early familiarity with the demographic data in your county. Get a law student to work on these requests and maybe get familiar with the Census website yourself.

III.

Petit Jury Selection – expanding Batson

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Congress passed and President Ulysses S. Grant signed the Civil Rights Act of 1875. Ch. 114, 18 Stat. 335. Among other things, that law made it a criminal offense for state officials to exclude individuals from jury service on account of their race. 18 U. S. C. ยง243. The Act provides: "No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude."

In 1880, just 12 years after ratification of the Fourteenth Amendment, the Court decided Strauder v. West Virginia, 100 U. S. 303. That case concerned a West Virginia statute that allowed whites only to serve as jurors. The Court held the law unconstitutional.

In reaching its conclusion, the Court explained that the Fourteenth Amendment required "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, 7

shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." Id., at 307. In the words of the Strauder Court: "The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." Id., at 308.

For those reasons, the Court ruled that the West Virginia statute excluding blacks from jury service violated the Fourteenth Amendment.

As the Court later explained in the Slaughter-House Cases interpreted the

Fourteenth

Amendment

"as

proscribing

all

state-imposed

discriminations against the Negro race," including in jury service. See

Brown v. Board of Education, 347 U. S. 483 (1954),

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In the decades after Strauder, the Court reiterated that States may not discriminate on the basis of race in jury selection. See, e.g., Neal v.

Delaware, 103 U. S. 370, 397 (1881); Carter v. Texas, 177 U. S. 442, 447 (1900); Norris v. Alabama, 294 U. S. 587, 597-599 (1935); Pierre v.

Louisiana, 306 U. S. 354, 362 (1939); Smith v. Texas, 311 U. S. 128, 130131 (1940); Avery v. Georgia, 345 U. S. 559, 562 (1953); Hernandez v.

Texas, 347 U. S. 475, 477-478, 482 (1954); Coleman v. Alabama, 377 U. S. 129, 133 (1964).

Even though laws barring blacks from serving on juries were unconstitutional after Strauder, many jurisdictions employed various discriminatory tools to prevent black persons from being called for jury service. And when those tactics failed, or were invalidated, prosecutors could still exercise peremptory strikes in individual cases to remove most or all black prospective jurors.

In the century after Strauder, the freedom to exercise peremptory strikes for any reason meant that "the problem of racial exclusion from jury service" remained "widespread" and "deeply entrenched." 5 U. S. Commission on Civil Rights Report 90 (1961). In the aftermath of

Strauder, the exclusion of black jurors became more covert and less 9

overt—often accomplished through peremptory challenges in individual courtrooms rather than by blanket operation of law. But as the Supreme Court later noted, the results were the same for black jurors and black defendants, as well as for the black community's confidence in the fairness of the American criminal justice system. See Batson, 476 U. S., at 98-99.

Eighty-five years after Strauder, the Supreme Court decided Swain

v. Alabama, 380 U. S. 202 (1965). The defendant Swain was black. Swain was convicted of a capital offense in Talladega County, Alabama, and sentenced to death. Swain presented evidence that no black juror had served on a jury in Talladega County in more than a decade. In Swain's case, the prosecutor struck all six qualified black prospective jurors, ensuring that Swain was tried before an all-white jury. Swain invoked

Strauder to argue that the prosecutor in his case had impermissibly discriminated on the basis of race by using peremptory challenges to strike the six black prospective jurors. See 380 U. S., at 203, 210.

The Supreme Court ruled that Swain had not established unconstitutional discrimination. Most importantly, the Court held that a defendant could not object to the State's use of peremptory strikes in an 10

individual case. In the Court's words: "[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws."

Id., at 221. The Swain Court reasoned the prosecutor could strike prospective jurors on the basis of their group affiliations, including race.

In other words, a prosecutor could permissibly strike a prospective juror for any reason, including the assumption or belief that a black prospective juror, because of race, would be favorable to a black defendant or unfavorable to the State.

To be sure, the Swain Court held that a defendant could make out a case of racial discrimination by showing that the State "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be," had been responsible for the removal of qualified black prospective jurors so that no black jurors "ever serve on petit juries." Swain's high bar for establishing a constitutional violation was almost impossible for any defendant to surmount, as the aftermath of Swain amply demonstrated.

Twenty-one years later, in its 1986 decision in Batson, the Court revisited several critical aspects of Swain and in essence overruled them.

In so doing, the Court emphasized that "the central concern" of the 11

Fourteenth Amendment "was to put an end to governmental discrimination on account of race." 476 U. S., at 85. The Batson Court noted that Swain had left prosecutors' peremptory challenges "largely immune from constitutional scrutiny." 476 U. S., at 92-93. In his concurrence in Batson, Justice Byron White (the author of Swain) agreed that Swain should be overruled. He stated: "[T]he practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread, so much so" that "I agree with the Court that the time has come to rule as it has." 476 U. S., at 101-102.

Under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination.

One analysis of Batson broke it down into four parts.

First, the Batson Court rejected Swain's insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. See Batson, 476 U. S., at 95. According

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to the Batson Court, defendants had run into "practical difficulties" in trying to prove that a State had systematically "exercised peremptory challenges to exclude blacks from the jury on account of race." Batson, at 92, n. 17. The Batson Court explained that, in some jurisdictions, requiring a defendant to "investigate, over a number of cases, the race of persons tried in the particular jurisdiction, the racial composition of the venire and petit jury, and the manner in which both parties exercised their peremptory challenges" posed an "insurmountable" burden.

In addition to that practical point, the Court stressed a basic equal protection point: In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many.

For those reasons, the Batson Court held that a criminal defendant could show "purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, at 96 (emphasis added).

Second, the Batson Court rejected Swain's statement that a prosecutor could strike a black juror based on an assumption or belief 13

that the black juror would favor a black defendant. In some of the most critical sentences in the Batson opinion, the Court emphasized that a prosecutor may not rebut a claim of discrimination "by stating merely that he challenged jurors of the defendant's race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race." 476 U. S., at 97. The Court elaborated: The Equal Protection Clause "forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' race." Id., at 97-98. In his concurrence, Justice Thurgood Marshall drove the point home: "Exclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State's case against a black defendant than it can be justified by the notion that blacks lack the intelligence, experience, or moral integrity to be entrusted with that role." Batson, concurring, at 104-105 (internal quotation marks and citations omitted).

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The Supreme Court did not accept the argument that race-based peremptory strikes should be permissible because black, white, Asian, and Hispanic defendants and jurors were all "equally" subject to racebased discrimination. The Court stated that each removal of an individual juror because of his or her race is a constitutional violation.

Discrimination against one defendant or juror on account of race is not remedied or cured by discrimination against other defendants or jurors on account of race. Some say that there is no equal protection violation if individuals "of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors. The suggestion that racial classifications may survive when visited upon all persons is no more authoritative today than the case which advanced the theorem, Plessy v. Ferguson, 163 U. S. 537

(1896). This idea has no place in our modern equal protection

jurisprudence. It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree." Powers, 499 U. S., at 410 (citing Loving v. Virginia, 388 U. S. 1 (1967)).

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Fourth, the Batson Court did not accept the argument that racebased peremptory strikes are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out. Under the Equal Protection Clause, the Court stressed, even a single instance of race discrimination against a prospective juror is impermissible. Moreover, in criminal cases involving black defendants, the “both-sides-can-do-it� argument overlooks the percentage of the United States population that is black (about 12 percent) and the cold reality of jury selection in most jurisdictions. Blacks are a minority in most jurisdictions, prosecutors often have more peremptory strikes than there are black prospective jurors on a particular panel. In the old days therefore, allowing each side in a case involving a black defendant to strike prospective jurors on the basis of race meant that a prosecutor could eliminate all of the black jurors, but a black defendant could not eliminate all of the white jurors. So in the real world of criminal trials against black defendants, both history and math tell us that a system of race-based peremptories does not treat black defendants and black prospective jurors equally with prosecutors and white prospective jurors. Batson, 476 U. S., at 99.

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Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process. Enforcing that constitutional principle, Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants. By taking steps to eradicate racial discrimination from the jury selection process, Batson sought to protect the rights of defendants and jurors, and to enhance public confidence in the fairness of the criminal justice system. Batson immediately revolutionized the jury selection process that takes place every day in federal and state criminal courtrooms throughout the United States.

The Supreme Court has been serious about Batson. See Foster, 578 U. S. ___; Snyder v. Louisiana, 552 U. S. 472 (2008); Miller-El v. Dretke, 545 U. S. 231 (2005) (Miller-El II). Moreover, the Court has extended Batson in certain ways. A defendant of any race may raise a Batson claim, and a defendant may raise a Batson claim even if the defendant and the excluded juror are of different races. See Hernandez, 347 U. S., at 477478; Powers, 499 U. S., at 406. Moreover, Batson now applies to gender discrimination, to a criminal defendant's peremptory strikes, and to civil 17

cases. See J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994);

Georgia v. McCollum, 505 U. S. 42, 59 (1992); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 616 (1991). What does this mean for us?

It means we can, depending on the facts of our case, push the limits of Batson by challenging the State for, as an example, excluding white jurors for a case against a white supremacist, excluding Hispancis on an unfair basis, or even excluding members of a religious minority on both equal protection AND First Amendment grounds. We can seek pre-trial discovery on the evaluations of our opponents to see if there are grades for “leaving too many minorities on panels�. I swear to you this used to be a block on the Harris County evals in the old days. Ask for pre-trial warnings from the trial bench and provide briefing for the past cases in Texas that showed patterns of discrimination. Make it about race in the papers or on social media. Use social media to create a pre-trial storm of unflattering images of discrimination.

IV.

Challenging post trial procedures

We use civil rights suits for the imposition of lethal injection. Why not use declaratory judgments or 1983 actions to determine if the Board of

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Pardons and Paroles acts in a discriminatory manner? [Hint: it does!] We would have to make the case that risk of repetition should avoid ripeness, but I believe it is worth a shot. Even if lost, the constant shame of admitting how stingy and bias filled these procedures are gets old on politicians.

What about challenges to the CCA’s use of future danger analysis?

What about race as a mitigating factor if intentional discrimination is alleged? Or in argument as a reason for mitigation? These challenges are limited only by your imagination.

What about race as a basis for

suppressing stops/arrests/seizures pretrial?

Keep thinking about new

ways to discredit their case, and the officers/ADAs/elected DA procedures. This is a political game as well as a legal one..use every legitimate means at your disposal!

Good luck!

Paddy Contact info: Patrick F. McCann Law Offices of Patrick F. McCann 700 Louisiana, Ste 3950 Houston, Texas 77002 713-223-3805 19

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