Getting Game Day Ready in Laredo by TCDLA

Laredo, TX November 12, 2021

CDLP Chair:

Adam Kobs - San Antonio

CDLP Vice Chair:

Monique Sparks - Houston

Texas Criminal Defense Lawyers Association

Game Day! How to Tackle Any Courtroom Situation Table of Contents

-Speaker

Topic November 12, 2021

Robert Gebbia Judson Woodley Paul Harrell Joseph Hoelscher Cynthia Orr Jennifer Zarka Carol Camp

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

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

Speaker:

Robert Gebbia 3030 Nacogdoches Ste 222g San Antonio, TX 78217 (210) 222-9132 phone (888) 519-8229 fax bobby@hgclaw.com www.hgclaw.com

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

Running Head: Opening and Closing Arguments

Kick Off and Red Zone: Opening and Closing Arguments Robert F. Gebbia Texas Criminal Defense Lawyers Association Defense: We Make Champions Laredo, Texas November 12th, 2021

Running Head: Opening and Closing Arguments

Opening Statements After months of pre-trial preparation, plea bargain negotiations, investigation and selecting a jury you are finally ready to make your opening statement. Wait, what do I say? It’s ok, we all get that feeling. Opening statements are one of the most difficult parts and one of the most overlooked stages of the trial. The opening statement is your opportunity to humanize your client, introduce what you expect the evidence will show, and re-establish the theme that began in your voir dire. Gaining the Allegiance of the Jury The primary objective of the opening statement is to gain the allegiance of the jury. There are many studies, old wives’ tales, and anecdotal evidence that suggests the jury is well on their way to making up their minds about your clients guilt or innocence. So this is the first time you really get to gain their allegiance. You want to get the jury on your side in opening. To do so you must do a several things. First, is to be sure to re-introduce your theme. I say re-introduce because you should have already established your theme in voir dire. The theme of your case is the sound bite of your case: “self-defense”, “#metoo”, “black lives matter”. You want to re-establish that and integrate it into your opening. In doing so, it is important to tell your client’s story. Tell it in a compelling and coherent way. Use simple language. This isn’t the time to show everyone in the jury box how smart you are. Save the academic language for happy hour with your colleagues. This is the time to speak to the jury as equals and to get them to vote for your guy by telling a compelling story. Part of telling that story might be acknowledging some of the not-so-great parts of your case. That’s a good way to establish good rapport and to come across as your authentic self. In doing so, you humanize yourself and you humanize your client.

Running Head: Opening and Closing Arguments

In the sequence of events the State does their opening statement first. In the State’s opening be sure you are taking good notes of all the facts the prosecutor is telling the jury that the evidence will show. Especially that facts which will be hotly contested. Also, make note of things that the prosecutor might say that come across as condescending. The prosecutor may also try to make light of some things or try to lessen his burden. They almost always do. Be prepared to make a note of this and decide if you want to use it in your open or whether you want to save it for your close. If the State flies off the rails and you must object, then you must object. Be prepared to preserve your error by making your objection timely and specific, asking for an instruction and a mistrial. You want to be careful here because the jury will not like it. Remember, you are trying to gain their allegiance. If you come across as an obstinate jack ass you may alienate them. You want the jury to trust you. In contrast, the last thing you want to do is to alienate the jury or to cause them to dislike you and or your client. The State concludes their opening, and it is your turn to make yours. Deep breaths. You got this. Wait, I can reserve? Ok, yes you can reserve your opening statement but it rarely, if ever makes sense to do so. I am going to say that you should never reserve your opening statement. There may be some big reveal or strategic opportunity that indicates you should. I am more inclined to tell you that you should not. Stand up and get going with your opening. “May it please the court….”. Be yourself. Make good eye contact. Project your voice. Stand in front of the jury. Move around naturally. Don’t pace. Use your hands to emphasize points but don’t over do it. Don’t put your hands in your pockets. Use strong active language and tell your story in a persuasive way. Don’t overuse “the evidence will show”. You only need to say that once or twice at most. Also, do not start with “The opening statement is a road map” or some other useless platitude. Start with your theme! Humanize your client’s case. Make it something that anyone

Running Head: Opening and Closing Arguments

and everyone can relate to. Don’t come across like you are wasting time are getting warmed up to make your statement. Make it. Tell your story in a real authentic way. Walk over to your client and put your hand on their shoulder. Re-introduce yourself and your client. Provide some biographical information that you expect will come out in trial and tie it into your theme. That’s a great way to establish human contact with the jury. It’s a tried-and-true method of getting them on your side. Telling Your Story Tell your story in a relatable and concise way. Be brief and tell the complete story even if your facts are bad. If you can’t rightfully dispute the prosecutions facts—don’t—sometimes we’re left little more to argue than the burden of proof to argue to the jury. If that’s the case use your opening statement to condition jury for those areas where reasonable doubt can arise. Potential areas include: credibility of the witness, eyewitness identification, or a narrow legal issue. Every case is different and there are different opportunities to tell the story. Chronologically is one way and it can work very effectively. You don’t have to be married to chronological order if it does not work for you but what you don’t want to do is confuse the jury or put them to sleep. This is not the time to dive into the weeds of your case. This should all be very high level, concise and engaging. You want them engaged. Keep it interesting and focus on the human elements of your story. Highlight the significant details but do not burrow down into the minutia. Don’t be repetitive and uninteresting. Use active language that brings the theme of your case into the forefront of your opening statement. If you have some weaknesses you want to point out in your case, now is the time. For example, “You are going to see some really disturbing pictures. I am sorry. It is not for the faint of heart. But the nature of these photos does not in any

Running Head: Opening and Closing Arguments

prove that Mr. Client did anything. In fact, at the time of the alleged offense he was on the beach in Tahiti”. Opening statements are not really the time for over-the-top drama. Save that for closing. If there is anything to adhere to in opening it is this: Do not overcommit to something that might change during trial. Don’t over promise what witnesses may or may not say. If you over committed to something that does not come to fruition you may lose credibility with the jury. If you lose credibility, you lose their allegiance and you may lose the case. Instead of overcommitting, be clear and concise. Avoid lots of detail. Make good eye contact and emphasize your points. Tie in your them and finish up. Going on for too long or getting into details can do more harm than good. Plan your how to end your open strong and finish it up. Closing Arguments You have worked and prepared your case for months (hopefully). The jury has been picked and sworn. You made a clear and concise opening statement. The evidence presented. The witnesses crossed. Your objections have been made, over-ruled and (hopefully) preserved. The judge gave you that jury charge you really hoped you might get. Now is the time to seal the deal. Now is the time to clearly and concisely summarize the evidence and convince this jury that your client is not guilty. Be a Tough Act to Follow It always makes me feel better knowing that I am not going first. All of this is an act and we have a role to play. Know your role. Take it easy. Deep breaths. First thing is first, the judge is about to bore the jury out of their minds by reading them the jury charge. Sit up straight and pay attention. Follow along on the jury charge and focus on your breathing. Once finished the State is going to put up their lesser experienced prosecutor. This is basically practice time for the

Running Head: Opening and Closing Arguments

younger attorney. That prosecutor is going to give their boiler-plate spiel about how the jury charge is their “map” and reiterate exactly what the judge just bored them to death with. Pay close attention to what that attorney is saying. You may need to slip a few things in to your presentation based on whatever dumb things they say, and they invariably say something dumb. You can expect the lesser prosecutor to give about a ten-minute presentation or so. It’s usually not the substance of the case but an explanation of the law from the perspective of the State. When it’s your turn you get to knock it out of the park! Be prepared, be clear, be precise in your thoughts, your words, and actions. Now you can control the room. All the energy that the judge and the lesser prosecutor just sucked out of the room you get to bring back. Have a powerful visual presentation that aids you in your argument and really knock it home. Make it so difficult for that greater prosecutor to follow you that they must change their game plan. Be strong, be smart, be clever, and impassioned. Don’t be afraid to sprinkle a little humor in there as well. A little comic relief can go a long way if you are really hitting on all the high notes. Connect with that jury. Connect with them in a way you started to in voir dire. Remind them of who you are. When you have it going and have it going right, when you sit down you made it real tough for the other guy to stand up. You have him reeling. Everything they thought they were going to say just flew out the window. They are mad. Hot white mad. When they start referencing you, yelling about you, then you know you got the better of them. Be a tough act to follow. Tie Your Close Back to Your Voir Dire Your closing argument is the time where you get to hammer home all those important points you made back at voir dire. During jury selection you had the opportunity to discuss, brainstorm and educate the jury on the anticipated issues of your client’s case. Closing arguments start in voir dire. Voir dire is where you can plant the seeds of all the arguments you get to make

Running Head: Opening and Closing Arguments

at close. Have the foresight to see your case all the way through from start to finish. If you do so, you can present a nice tight package at closing. You can argue things like “We discussed this very issue in jury selection! Everyone agreed with me then.” You may have a few soundbites that you dropped on the venire that you can now bring back and resonate with your jury. Think of your case not in separated acts but rather as one consistent story or song. Circling back to the issues or stories you told in jury selection establishes a connection from there to now. It establishes you as sincere and earnest with them. Your thematic consistency puts them at ease and allows them to open their hearts and their minds to the points you are trying to make. Practical Tips for Developing a Strong Closing Argument There is no substitute for preparation. Still, you can prepare day in and day out and still whiff when the big moment comes. Let’s talk some practical tips. For me there is not better substitution than brainstorming with someone else. The more the better but, don’t let them dominate your thought process. You know your case, they likely do not. Those with confidence issues or who are prone to emotionality over criticism may have a hard time with this. If that is you then maybe you should try to brainstorm with a trusted friend, colleague or spouse. Not a person in the world who can call bullshit on me like my spouse. You do not want to be a snakeoil salesman. You want to look and sound authentic. If you start selling too hard the jury will know you are full of it. You want to have conviction in all that you say in your close. That’s easier to write than it is to do. So have a sounding board that you can drop some ideas on. Brainstorm the old-fashioned way. Get a butcher board out and start writing out your themes and your ideas. What is it that you are trying to say? Good! Say it! Don’t beat around the bush. Take a book out of Dr. Seuss. Say what you mean and mean what you say. Establish those good themes and run with them. Tie all the facts and evidence back to your theme.

Running Head: Opening and Closing Arguments

Play it cool during cross examination. There is always the urge to pounce on cross examination when the witness says something flippant. Play it cool. Make a little note for yourself and hammer it in your close. You don’t have to turn it into a big thing on cross because it only comes across as argumentative. Cross isn’t the time for argument, but closing is! If you try to hammer the flippant attitude or testimony too hard in cross you give the State the opportunity to cure it. They can re-direct and softball something like, “You didn’t really mean to say…”. Save it for close. That’s when you get to hammer them with it. They won’t even see it coming because you didn’t make a big deal out of in cross. Now, they have to re-write their closing script to fill in gaps that they didn’t anticipate having to fill. Once you get them off script you have created an opportunity to beat them in closing. Keep a closing log. Take a singular blank piece of paper and write “Closing” at the top of it. Keep a log of all the things the witnesses and the prosecutors say that you can turn around and use in closing. You may or may not use all of it but it’s nice to have because it’s easy to forget little stuff that gets said during a trial. The beauty of all that little stuff is you can make a mountain out of it in close. Keep yourself a little closing log. This is particularly useful because when you get to the point where you are preparing your close, you already have a nice little brainstorming sheet to work off of. Use your closing log to integrate the facts and the evidence into the themes that you have set up in voir dire, opening, and cross. Remember, none of these stages of the trial should stand on their own in a vacuum. Run your theme through the whole trial and then hammer it home in close. By keeping a little closing notebook, you are able to go back and relive the trial in your mind as you set the stage for your closing argument. Project yourself delivering a strong closing argument. Sure, this deviates a little bit from “practical tips” but when you learn how to do it you see how invaluable it is. High achievers

Running Head: Opening and Closing Arguments

project themselves into performance all the time. Actors do the same. Don’t be afraid of a little bit of fantasy in your life. Project yourself delivering your lines. Don’t just lie in bed thinking about what you should say. That should already be done. If you are laying in bed thinking about what you should say it’s time to get up and go back to your closing log. It’s time to get up and take another look at your brainstorming session notes. When you are laying in bed waiting for the big moment it is time to project yourself in your own mind into the morning, in court, knocking this closing statement out of the park. It’s ok to be a kid again. We were used to it all the time on the playground. Bottom of the ninth, tie score, you are coming to the plate and you are going to knock one into the right center field bleachers. Point your bat out there. Fastball is coming, and you know it. See yourself delivering in the big moment. See yourself dropping the lines that you discussed with your trial team. See yourself nailing down the theme that you have been setting up since jury selection. Go through all of it in your mind. If you are able to do that; if you are able to project yourself to another place and time like that, you will absolutely hammer your closing argument. Practical Tips for Delivering Your Closing Argument Now is the time. The State’s lesser prosecutor just went over the law. The judge looks over to Defense Counsel table and you are ready to deliver. First thing js first: Be Humble! I know it’s not easy. You have a lot to say and you are ready to say it. Slow down. Remember, this is all an act and you have a role to play. I like to greet the jury with a pleasantry and a kind remark. “Good morning, good citizens of Bexar County. Thank you for your punctuality and your attentiveness throughout the presentation of this case.” I like to re-introduce myself to the jury. “My name is Robert Gebbia and it has been my honor to be here with you this week.” I like to reintroduce my client. “This is John Doe and it has been my honor to represent him in this very

Running Head: Opening and Closing Arguments

important case.” Sometimes I will even go so far as to shake his hand and thank him. I pat him on the back and I remind the jury that “as he sits here he is an innocent man.” Then I take it a step further and I say something like, “and for all the reasons I am about to tell you, you will find that he is not guilty of this offense.” I like to pause then. Collect my thoughts. I then will thank the Judge and do a little bow. I tell them what an honor it has been to practice before them. Then I give a nod to the State and I thank them for their service to the community. After all, it’s all a big show and I am a big showman. Then I begin my argument. That little dance as described above is useful for me. It helps to get my blood flowing. It helps to energize and control the room. That is ultimately what you want to do. You want to have complete and total control of that room while you are delivering your close. You want to hit all of your points with clarity and precision. Be sharp. Know what you are saying. Be completely authentic with the words that come from your mouth. Tell your story with conviction. Undermine all the bad facts with good ones. Utilize your theme. Speak with inflection when you are making your points. Use your voice as a tool of influence. Repeat your theme with each fact or piece of evidence that supports your case. Remind the jury of their duty. Remind the jury of their oath. Remind the jury of the promises they made to carefully consider all of the evidence before rendering a verdict. Remind them that if the jury charge is a map then the presumption of innocence is the compass. Make those important human connections. Move around the room. Don’t be afraid to act little pieces of it out. I love to play different characters and different voices. It gives the jury a real picture in their minds. It’s also great theatre. Do your best to get the energy in the room to a palpable level. Then back off a bit. Take a break in your mind. Walk back to counsel table. Have some water there for you. Take a quick swig. But you’re not only taking a quick break. Next to

Running Head: Opening and Closing Arguments

your water have a very clearly written two or three point bullet point list of your main themes. A very cleverly placed notepad with three very neatly, very clearly written points you absolutely want to make. Now you have had a break, get back in there and make those three points! Hammer them home. When you are done, when you have said all that you wanted to say, you finish. Close your close. Challenge the jury to follow their oath. Summon them to do the right thing. “Mr. Doe is not guilty. Not guilty. Not guilty.” I like to say it three times for effect and resonance. Conclusion In conclusion, opening statements are one of the most difficult parts and one of the most overlooked stages of the trial. This can cause advocates some anxiety. Follow those basic premises and you can score some points with the jury. Remember to humanize your client, introduce what you expect the evidence will show, and re-establish the theme that began in your voir dire. Then, in your close, crush the State’s argument and win the case with a strong passionate argument for your client. Now go give the State hell!

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

Topic: Scouting | Voir Dire

Speaker:

Judson Woodley PO Box 99 Comanche TX, 76442-0099 (325) 356-2502 phone (325) 356-5193 fax jud@woodleydudley.net www.woodleydudley.net

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

The Basics of Jury Selection

Presented by Jud Woodley Woodley & Dudley Law Firm Comanche and Brownwood, Texas 806.773.3525 (cell)

TCDLA GETTING GAME DAY READY Scouting – Voir Dire

*Special thanks to Jeff Kearney, portions of whose written jury selection works were sampled in this paper.

The Basics of Jury Selection By: Jud Woodley I.

Setting the Stage

It’s Monday morning. Trial day. You have a feeling of angst while getting dressed to go to court. You don’t think your case will be reached for trial because it’s number three among the cases on the list. You texted the defense lawyers with the two cases ahead of yours last night, and both assured you that their case would not settle. You’ve brought with you some trusty jury selection tools: 1) an outline of topics and questions, 2) a juror seating chart with room for notes, and 3) a jury questionnaire covering the most important issues of your trial. You finally arrive at court and are confronted with the news that the two cases ahead of yours settled, and your case is going to trial. II.

We’ve All Been Here

If you’ve represented indigent clients charged with crimes for any length of time, particularly in rural areas, you’ve been here. Most of us have scores of indigent cases at a time. We will have multiple felony cases set together on the same jury docket. There will be multiple other cases set along with our cases on the same docket. It’s common for us to not know for certain if our case will be reached for trial until a few days prior to jury selection, or, frankly, until the day of jury selection. But we are the battle tested. We know how to pick a jury, and we’re always ready to go because this is what we do. III.

The Jury Questionnaire

For years we’ve been taught at TCDLA seminars about the effectiveness of jury questionnaires. We’ve been given samples of questionnaires to tweak and use in our cases. As of this writing, I have never used a juror questionnaire, and know of no attorney in the region I

practice having used one in any criminal trial. I want to change this, so I decided to find out how hard it would be to integrate questionnaires into my trials. If you’ve ever picked a jury in a case involving issues that are taboo, repugnant, or likely to induce hostility, then you’ve confronted the reality that most jurors are not going to give meaningful responses. In such cases you walk a tight rope, asking questions that conjure up repulsive and distressing thoughts and images, while at the same time trying to establish rapport with 50 strangers. Your presentation easily becomes awkward and disjointed. Disoriented and embarrassed faces stare back at you from the jury panel. Many prospective jurors suffer anxiety in anticipation of being asked questions, and will pay little to no real attention to the points you’re trying to develop and convey. You’ll get ineffectual responses from 5 to 10 prospective jurors, whose answers are constrained by an unfamiliar environment with dozens of strangers listening. You will not receive substantive information because their responses will be demure and calibrated to avoid feeling ashamed or judged by their peers. The object of the questionnaire is to find out information about the prospective jurors so that you can effectively exercise peremptory strikes, and consider challenges for cause. If you’ve ever thought about using a questionnaire, you’ve probably contemplated the logistics of how to get it done, particularly in a court appointed case where you may not have help. Ideally, you should get approval from the Judge and agreement of the prosecutor before trial. When Judges learn that the questionnaire will save the court’s time, they should normally appreciate them. The best practice is for the jurors to write their answers when they arrive at the courthouse, prior to being qualified. In jurisdictions where I practice, Judges qualify the jury. This process can take from 30 minutes to an hour (depending on how much politicking the Judge wants to do with the panel). During this time, the lawyers are usually sitting around. While the jury panel is being qualified, rather than sitting around, the lawyers could be analyzing the questionnaires. The only problem with this is that you won’t know what order in which the jurors will be seated, and you may spend

time analyzing questionnaires of jurors who are excused during the qualification process. Each prospective jury should receive a questionnaire on triplicate, carbonless paper with a cardboard backing and a black ink precision point pen. Once you draft your questionnaire, you can send it to any copy shop to be assembled for 50 cents apiece. 70 questionnaires will cost you $35, and 70 decent black ink pens will cost you around $30. All in: less than $100, for which you may seek reimbursement from the court. Prospective jurors should be given at least 15 minutes to answer the questions. The Judge should allow them to answer the questions in the hall outside the courtroom. The more comfortable they are, the better answers you should get. The Judge should put the bailiff in charge of handing out and collecting the questionnaires. IV.

Challenges For Cause

Challenges for cause can consume a great deal of time in voir dire. If you have jurors who give answers that suggest further questioning is necessary to determine if a challenge for cause is appropriate, the questioning process can exhaust precious time. You should ask the Judge if further challenge for cause questioning can be taken up at the end of the entire voir dire. Judges should be amenable to this process because it allows for the maximum use of the attorney’s time during voir dire and does not interrupt his/her flow. If the attorney has a talkative juror who is subject to a challenge for cause on one issue and the juror wants to assert his/her view on another issue, the attorney can be polite and not offend the juror by saying, “[Juror’s Name], I know I am cutting you off, but we will be talking with the Judge a little later.” By doing the challenges for cause at the end, the attorney knows, and more importantly, the Judge knows, exactly how many jurors are being challenged, how many unchallenged jurors are left, and which of the challenged jurors are most likely to be excused for cause. There are many inherent problems with the challenge-for-cause-as-yougo approach. For example, fully developing the challenges for cause as

they arise is not time efficient, other jurors may get bored, qualified jurors may learn how to disqualify themselves, and some cases get reversed because the Judge doesn’t grant an early challenge for cause for fear there will not be enough jurors left. Therefore, counsel would be well-served to ask the Court to allow the additional challenge for cause questioning to occur at the end of voir dire. V.

Strategy

Following are several topics for consideration regarding objectives and strategies for any jury selection. A. To Learn or To Teach? It is human nature for an attorney who has spent months preparing a case to want to convince everyone in the courtroom that his or her position is the correct one, and that the client is deserving of a favorable verdict. Potential jurors come to the courtroom with a mind-set that has developed over the span of many years, and seldom (if ever) will an attorney change a juror’s mind. In fact, it is rare to change a person’s mind and futile to try to change a person’s heart. Time should not be wasted trying to convince anyone to change. Attempting to convince jurors to change will only alienate them, shut down any possible dialogue, and encourage arguments, one-upmanship or lying. It is the wise and skillful attorney who listens to the jurors and learns from them. The attorney who asks jurors questions with an I-want-to-learn-fromyou attitude will find that jurors are more willing to share their feelings or opinions when there is no threat of a challenge or criticism. These jurors will provide the information with which counsel can make meaningful challenges for cause and intelligently exercise peremptory strikes, while encouraging the other panel members to share their opinions or feelings because it is safe to do so. By the same token, providing some information to jurors, such as how the criminal justice system works, and the concept of the presumption of innocence and the like can be very effective. I’ve found that most jurors have no idea what it takes to get from being a citizen, free from the bonds of a criminal prosecution, to being a citizen under indictment and sitting in

the chair facing them. In many cases, it only takes an allegation, in the form of words, to be uttered against a person to put them on trial. Many jurors also don’t have an understanding of the right not to testify, or indeed the right of the accused to not utter a single word throughout the trial. I’ve seen looks of surprise when the jury learns that if the accused stands mute when asked for a plea after the reading of the indictment, the court must enter a plea of not guilty on his behalf. Sharing some knowledge and providing the jury some understanding of the process, can accomplish two things: 1) impress upon them the fact that our laws were designed to protect the innocent, and 2) establish your credibility on the law with the jurors. B. Never Be Judgmental of the Jurors In any meaningful relationship, it is important to trust and not be judgmental of the other person. This is especially true when it comes to jury selection. Too many times lawyers will alienate potential jurors by saying things like, “Do you understand the law says...” or, “Are you telling me that you can not follow the law?”. When an attorney makes statements like these, the potential juror instinctively feels defensive or put on the spot. Even more damaging is the fact that the other potential jurors will feel empathy for the juror and animus towards the attorney. A better approach and one that will foster open communication is when the attorney has the courage to commend a juror who has given a painfully honest, yet negative answer. There is no such thing as a bad answer. The reason for this is because bad answers will open the door to challenges for cause or peremptory strikes. For example, imagine a situation where a juror has said that a person on trial should testify. Instead of responding with, “Do you understand that every citizen has the right to not testify, and that the State bears the burden of proving a defendant guilty?”, say to the juror: “Miss Smith, I appreciate your honest and candid answer. The beauty of our system is that everyone is entitled to their own opinion. You have had the courage to express yours. Is it okay with you if a little bit later we visit (some attorneys would feel more comfortable saying talk) with the Judge about this?” This non-judgmental approach will be appreciated by the questioned juror and will create a setting that will encourage the other jurors to be honest with the attorney as well.

C. Concentrate on the First Thirty-Two Jurors With voir dire time strictly limited, it is important not to use valuable time talking to jurors who will never sit on the panel. Limit questions to the first thirty-two jurors. If some of the first thirty-two jurors will be subject to a challenge for cause, talk to a sufficient number of jurors past juror number thirty-two. For example, if you feel that four jurors may be excused for hardship or subject to a challenge for cause as a result of the prosecutor’s voir dire or answers contained in the jury questionnaire, then talk to jurors through number thirty-six. The exception to this rule is if there is an expert who can educate the panel on a very important point and whose number is beyond thirty-two. Otherwise, there is no benefit talking with jurors who will not serve, and valuable voir dire time that could be used getting to know potential jurors will be wasted. D. Looping One of the most powerful and effective voir dire techniques is called looping. Looping is a technique whereby an attorney asks one potential juror a specific question and the juror responds. The lawyer then uses the juror’s name, repeats the juror’s exact words, and then asks another juror for a reaction to what the first juror said. A third juror is then asked to respond to the answers given by the first two jurors, with the attorney repeating their answers exactly and always using the juror’s name. This communication technique has many benefits. The jurors are educating each other rather than the panel hearing the propaganda of the lawyers. By repeating the juror’s exact words, any juror who disagrees is, essentially, disagreeing with another panel member and not the attorney. Using the jurors’ names compliments the jurors who have spent all day being treated as nameless and faceless entities, and the attorney becomes the one person who has recognized the jurors as people. The jurors will feel that they are held in positive regard and that their answers are valued. This technique makes the jurors more likely to share honest feelings and opinions, and is the single greatest tool in encouraging a roomful of strangers to do so

Looping is also an effective way to deal with unfavorable answers. Following an unfavorable answer, a lawyer should thank and praise the juror for the answer. The attorney should explain to the juror and the entire panel that the purpose of voir dire is to learn what people’s opinions and feelings about certain subjects are, that the beauty of our system is that everyone is entitled to their opinions, and that there are no right or wrong answers, just honest ones. The attorney can then determine how many jurors agree or disagree with the view expressed by that particular juror. Jurors who share a similar opinion or feeling can be identified. Once the attorney has determined this group of potentially unfavorable jurors, he or she can then focus on jurors who are favorable on thisi ssue, i.e., they disagree with the previous (and unfavorable) answer. Opposing viewpoints can then be expressed by the other jurors. By handling an unfavorable answer in this manner, the lawyer has identified potential problem jurors, maintained or increased credibility, encouraged further candor from the jurors, and has once again segued back to positive ground by having the good jurors educate the panel. E. Closure Question As a general rule, we do not advocate asking general questions to the entire venire. Many times, when a probing and meaningful question is asked in a group setting, jurors are reluctant to answer. For example, in this day and age most potential jurors have opinions and feelings on laws, crimes and punishment. Too many times we have heard a lawyer say to the jury panel, “Will any member of the jury panel hold it against the Defendant if he/she does not testify?” We know that many jurors have strong feelings and negative opinions on this topic and will usually share this information when properly asked on an individual basis (i.e., “What would your reaction be if a person on trial did not testify on his own behalf?” or, “What are some reasons why an innocent person would not testify?”). What often happens in a group setting is that no one will raise their hand. General questions to the panel will only encourage the most outspoken jurors to participate. These jurors are just looking for the opportunity to speak their minds. Our goal is to get the other jurors to talk. Therefore, we recommend that an attorney ask specific jurors specific questions until such time as the attorney is ready to bring the topic to a conclusion. That is the time to ask the entire venire the closure questions, “We have heard quite a few of your fellow jurors say they feel that there are

valid reasons why an innocent person would not testify. Are there any members of the jury panel who feel differently or disagree? There is nothing wrong with disagreeing, but we need to know, so please raise your hand.” Conversely, if the prior jurors said that a person accused of a crime should testify, the attorney should ask a series of questions in the following manner: “Before we leave this topic, I need to ask you as a group, how many of you agree and disagree with Mr. Gray and Ms. Dodson. First, how many jurors agree that a person should testify? Please raise your hands.” After recording the names and numbers of the jurors who agree, ask: “How many jurors disagree with Mr. Gray and Ms. Dodson that there are valid reasons why a person would not want to testify?” Again, record the jurors’ names and numbers. This time go back and ask several of the jurors why they disagree. Finally, some jurors will not raise their hands at all. Pick two or three jurors and say: [Juror’s Name], I noticed that you didn’t raise your hand. What is your feeling or opinion about an innocent person on trial not testifying? -END

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

Topic: Scrimmaging | Pre-Trial Investigations

Speaker:

Paul Harrell

703B E Main St Gatesville TX, 76528-1431 (254) 404-3323 phone (254) 404-2183 fax paul.s.harrell@gmail.com

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

PAUL S. HARRELL ATTORNEY AT LAW

703B E. MAIN ST. GATESVILLE, TEXAS 76528 TELEPHONE: (254) 404-3323 FACSIMILE (254) 404-2183

October 19, 2021 Client

Road

Gatesville, Texas 76528 Re:

The State of Texas v. Jane Doe; In the County Court, Coryell County, Texas.

Dear Sir/Maam, This letter confirms that Paul S. Harrell, Attorney at Law, has been appointed to represent you in the above-referenced criminal case. Your case is currently NOT SCHEDULED FOR COURT Scope of Representation. We have been appointed to represent you with respect to the above captioned case only. Unless otherwise agreed to in writing, we will not represent you in any other cases or with other matters. This includes, but is not limited to, “collateral proceedings” such as license revocation hearing, civil lawsuits connected with this or any other case, or deportation proceedings. Personnel. The undersigned attorney will be your primary representative in this matter. Other staff members and attorneys may, from time-to-time, work on your case, subject to the approval of the lead attorney. Fees. There is no initial charge for our services. Because you are indigent, all expenses will be paid for by the Court. Privilege. Anything you say to us during the course of representing you will be kept confidential. However, there are a number of important exceptions to this rule which you must be aware of. If you tell us you are going to commit a crime, that fact is not confidential and must be reported to the police in certain circumstances. If other people are present when we have a discussion, that conversation is not privileged and may be testified to. Do not discuss your case with anyone, including friends and family. People you talk to can be subpoenaed (forced) to testify against you. Criminal defendants and inmates at the jail may be looking to make a deal with the prosecutor in exchange for testimony about what you have said. Do not contact anyone involved in this case, such as the victim, witnesses, or police officers. Victims and witnesses may perceive your contact as intimidation.

No Promises to Results. We have made, and will make, no promises as to the outcome of the case. We cannot promise an acquittal, probation, or any other outcome. In large part, the ultimate result of the case depends on what you do now, how you behave in jail or with your pretrial release officer, whether you are arrested for any new offenses, and whether you stay clean and sober. Contact. Please feel free to contact our office about your case at any time. If you should want to visit in person, please call and set up an appointment. However, if you are in jail, DO NOT try to call collect. We will not accept collect calls. You may write us a letter at any time and we will promptly answer all your questions. Open communication is important to help you achieve your goals and objectives, and so we invite you to contact us. Sincerely, By: _____/s/ Paul S. Harrell_____ Paul S. Harrell State Bar No. 24063567 703B E Main Gatesville TX 76528 254-404-3323 **** PRIVILEGED AND CONFIDENTIAL ****

PLEASE BE ADVISED THAT THE PROSECUTORS ARE LISTENING TO YOUR PHONE CALLS IF YOU ARE INCARCERATED

PAUL S. HARRELL ATTORNEY AT LAW

703B E. MAIN ST. GATESVILLE, TEXAS 76528 TELEPHONE: (254) 404-3323 FACSIMILE (254) 404-2183

Contact Information Please provide your contact information in the space below and return this form to our office in the self-addressed, postage-paid envelope that is provided for your convenience. Thank you, Paul S. Harrell, Attorney at Law

Contact Information Name:

__________________________________________________________________

Address:

__________________________________________________________________ __________________________________________________________________

Phone:

__________________________________________________________________

May we send text messages to the phone number above? E-mail:

_____________________________

__________________________________________________________________

Alternative Contact Information:

________________________________________________ ________________________________________________

__________ (Initial Here) I understand that it is my responsibility to update this office of any change in my contact information (phone number, address, e-mail, etc.). __________ (Initial Here) Unless you are in jail, court date notices will be sent to the address, telephone number and/or e-mail address listed above.

By:______________________________________

Date:_________________________

PAUL S. HARRELL ATTORNEY AT LAW

703B E. MAIN ST. GATESVILLE, TEXAS 76528 TELEPHONE: (254) 404-3323 FACSIMILE (254) 404-2183

Consent to Discuss Please complete this Consent to Discuss permission form, sign and return it to our office in the self-addressed, postage-paid envelope that is provided for your convenience. We are unable to discuss your case with anyone, to include family, spouse and friends, without authorization from you. If you choose to not list anyone, please put a slash though the blank lines, sign and return this form to our office. Thank you, Paul S. Harrell, Attorney at Law I ________________________________, give full permission to my attorney, to discuss all aspects of this case with the following individual(s): 1. _________________________________ 2. _________________________________ 3. _________________________________ 4. _________________________________ 5. _________________________________ 6. _________________________________ 7. _________________________________ 8. _________________________________ 9. _________________________________ 10. _________________________________

__________________________________ __________________________________ __________________________________ __________________________________ __________________________________ __________________________________ __________________________________ __________________________________ __________________________________ _________________________________

This is intended to be a full waiver of my confidentiality with regard to the following case (description of case or case number):_________________________________________________ By:______________________________________

Date:_________________________

PAUL S. HARRELL ATTORNEY AT LAW

703B E. MAIN ST. GATESVILLE, TEXAS 76528 TELEPHONE: (254) 404-3323 FACSIMILE (254) 404-2183

FAX

To:

Coryell District Attorney’s Office

From:

Paul S. Harrell, Attorney at Law

Fax:

(254) 865-5147

Pages:

4 (including this cover sheet)

Date:

October 22, 2021

Re:

JANE DOE

 Urgent

 For Review

 Please Comment

 Please Reply

 Please Recycle

 Comments: Attached, please find a Notice of Appearance of Counsel and Formal Request for Compliance with Article 39.14 of the Texas Code of Criminal Procedure. If you have any questions or concerns, please do not hesitate to contact our office. Thank you in advance for your time in this matter. Sincerely, Paul S. Harrell/ans This fax and any attachments transmitted with it are the property of Paul S Harrell, Attorney at Law, and or their/affiliates, are confidential and are intended solely for the use of the individual or entity to whom this fax transmission is addressed. If you are not one of the named recipient(s) or otherwise have reason to believe that you have received this message in error, please notify the sender at (254) 404-3323. Any other use, retention, dissemination, forwarding, printing, or copying of this fax transmission is strictly permitted.

[1]

CAUSE NO. UNINDICTED STATE OF TEXAS

IN THE 52ND DISTRICT COURT

VS.

JANE DOE

CORYELL COUNTY, TEXAS

NOTICE OF APPEARANCE OF COUNSEL AND FORMAL REQUEST FOR COMPLIANCE WITH ARTICLE 39.14 OF THE TEXAS CODE OF CRIMINAL PROCEDURE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, PAUL S. HARRELL, Attorney at Law, and enters this his appearance as the attorney of record for JANE DOE; Defendant, herein, representing him in the above entitled case, and requesting he be notified of any and all settings and/or notifications in the above entitled and numbered case. In addition to this attorney’s appearance, this document shall also serve as a formal request upon the prosecuting attorney to comply with 39.14 of the Texas Code of Criminal Procedure to produce and permit the inspection and/or the electronic duplication, copying and photographing by and on the behalf of the Defendant the following, in unredacted form: a. Any offense reports of any law enforcement officer or officers or investigators involved in the investigation, arrest and/or detainment of the Defendant herein; b. Any documents, papers, written or recorded statements of the Defendant; c. Any documents, papers, written or recorded statements of any witness which the prosecuting attorney may call as a witness herein; d. Any photographs, audio or video recordings of the Defendant, witnesses, victims, or alleged crime scenes; e. Any books, accounts, ledgers, letters, photographs, or other tangible objects involved in the investigation and/or prosecution of this offense; [2]

Any tangible property of any type seized during any arrest, search, detainment of the Defendant herein;

g. Any evidence which is exculpatory, impeachment or mitigating document, item or information in the possession, custody or control of the State, and law enforcement agency, or any State agency that tends to negate the guilt of the Defendant or would tend to reduce the punishment for the offense charged; h. The names, current addresses, current telephone numbers, of any witness which may be called by the prosecution in this cause pursuant to Rule 702, 703, and 705 of the Texas Rules of Evidence; i.

The criminal history of each and every witness the prosecution may call as a witness in this cause; but not including the work product of counsel for the State in the case and their investigators employed by the prosecuting attorney for the State, nor their notes, nor written communications between the State and an agent, representative, or employee of the State that constitute or contain evidence material to any matter involved in this cause. However, this request does extend to all items which are in the possession, custody, or control of the State or any person under contract with the State. The State may provide electronic duplicates of any document or other information.

This request extends to any time before, during or after trial that the State, its agents, servants and/or employees discover and additional document, item or information required to be disclosed pursuant to Article 39.14 of the Texas Code of Criminal Procedure under Subsection (h) requiring the prosecuting attorney for the State to promptly disclose the existence of the document, item or information to the Defendant, his attorney of record and the Court. Additionally, the Defendant, by and through his attorney of record, hereby request that the State electronically record or otherwise document any document, item, or other information

[3]

provided pursuant to hereto, setting forth each document, item, or other information and the date and time same was provided to Defendant’s attorney or record. This request is made pursuant to the requirements of Article 39.14 of the Texas Rule of Criminal Procedure. The Attorney for Defendant requests that the prosecuting attorney for the State comply with these requests as soon as practicable, but no later than fourteen (14) days of this request, or that the prosecuting attorney for the State file a formal motion to extend the time for the aforementioned fourteen (14) days, for the furnishing of same and request a formal hearing for the reasons for noncompliance and/or extending the time for compliance. Respectfully submitted, By: ____________________________ Paul S. Harrell, Attorney at Law State Bar No. 24063567 703 E. Main St. suite B Gatesville, Texas 76528 Phone No. (254) 404-3323 Fax No. (254) 404-2183

CERTIFICATE OF SERVICE This is to certify that on October 22, 2021, a true and correct copy of the above and foregoing document was served on the District Attorney’s Office, Coryell County, Gatesville, Texas, via facsimile only at (254) 865-5147. ___________________________________ Paul S. Harrell, Attorney for Defendant

[4]

NO. [*_________*] STATE OF TEXAS vs. JANE DOE

§ § § § §

IN THE DISTRICT COURT [*_________*] JUDICIAL DISTRICT [*_________*] COUNTY, TEXAS

MOTION FOR THE APPOINTMENT OF AN INVESTIGATOR TO THE HONORABLE JUDGE OF SAID COURT: Now comes Jane Doe, defendant in the above styled and numbered cause, by and through his attorney of record, and respectfully moves this Honorable Court to appoint a private investigator to assist him in the preparation of his defense, and for good cause shows the following: 1.

Defendant is charged with [*_________*].

Based on the limited investigation in this case, the undersigned counsel knows

that there are a number of witnesses who must be sought out and interviewed. This can only be done properly and effectively through the use of a private investigator. 3.

Appointment of a private investigator is necessary to insure that defendant receive

his rights to effective assistance of counsel, cross-examination and confrontation, and compulsory process, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 10 of the Texas Constitution; due process and due course of law, guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, sections 13, 19 and 29; and, equal protection of the law, guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, sections 3 and 3a of the Texas Constitution.

Appointed counsel is entitled to reimbursement for reasonable expenses incurred

with prior court approval for purposes of investigation.

Tex. Code Crim. Proc. Ann. art.

26.05(d). 5.

Undersigned counsel was appointed to represent the defendant because of his

indigence. This indigence prevents defendant from hiring a private investigator to assist in his defense. 6.

Defendant requests that the Court appoint [*_________*], a private investigator,

licensed in the State of Texas. WHEREFORE, PREMISES CONSIDERED, defendant prays that this Court appoint a private investigator to assist him in the preparation of his defense and that the Court order the County Auditor to pay the costs of such investigative services. Respectfully submitted, Paul S. Harrell 703 B E. Main St. GATESVILLE, Texas 76528 Tel: (254) 404-3323 Fax: (254) 404-2183

By:

[*_________*] State Bar No. [*_________*] paul.s.harrell@gmail.com Attorney for Jane Doe

CERTIFICATE OF SERVICE This is to certify that on October 22, 2021, a true and correct copy of the above and foregoing document was served on the District Attorney's Office, County, by electronic service

through the Electronic Filing Manager.

[*_________*] ORDER FOR A SETTING On _____________________________, 2021, the Defendant filed a Motion for the Appointment of an Investigator. The Court finds that the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED that a hearing on this motion is set for ________________, at ______________. Signed on _______________________________.

JUDGE PRESIDING

NO. [*_________*] STATE OF TEXAS vs. JANE DOE

§ § § § §

IN THE DISTRICT COURT [*_________*] JUDICIAL DISTRICT [*_________*] COUNTY, TEXAS

ORDER On

, 2021, came on to be considered Jane Doe's Motion for the

Appointment of an Investigator, and said motion is hereby (Granted) (Denied) JUDGE PRESIDING

NO. _________________ STATE OF TEXAS vs. JANE DOE

§ § § § §

IN THE _____ DISTRICT COURT OF ___________ COUNTY, TEXAS

FORMAL REQUEST FOR COMPLIANCE WITH ARTICLE 39.14 OF THE TEXAS CODE OF CRIMINAL PROCEDURE TO THE HONORABLE JUDGE OF SAID COURT: Now comes JANE DOE, Defendant in the above entitled and numbered cause, by and through undersigned counsel, and makes this Motion for Discovery, and for good cause shows the following: I. A. WITNESSES Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to any witnesses in this case: 1. A list of the names and addresses of all witnesses the prosecution intends to call at trial. 2. A list of the names addresses and professions of all expert witnesses the prosecution intends to call at trial, along with each expert's qualifications, the subject and a description of his or her contemplated testimony, and his or her report. 3. Any evidence in possession of the state that any of its witnesses is presently incompetent to testify, or that any of its witnesses has been found incompetent to testify, incompetent, or insane. 4. The criminal record of each witness for the state showing every conviction or probation for felony or misdemeanor involving moral turpitude which is admissible for impeachment under Rule 609 of the Texas Rules of Evidence. 5. The criminal record of each witness for the state showing every event which can be used to impeach the witness including any deferred adjudication probations,

arrests, or juvenile adjudications pending against the witness between the time of the offense alleged against Defendant and Defendant's trial. 6. All inducements offered by the state which might tend to motivate its witnesses to testify against Defendant, including, but not limited to, plea bargain agreements, fee, expense, or reward arrangements, agreements to dismiss or reduce or not bring charges, or any other agreement of leniency. 7. All writings used to refresh the recollection of any witnesses, as provided in Rule 612 of the Texas Rules of Evidence. B. STATEMENTS Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to any statements in this case: 1. All written confessions, admissions, and statements, made by Defendant to the state in connection with this case. 2. All oral confessions, admissions, and statements, made by Defendant to the state in connection with this case, which have been electronically recorded. 3. The substance of all oral confessions, admissions and statements made by Defendant to the state in connection with this case, which were not electronically recorded. 4. All statements, written or oral, electronically recorded or not, given by Defendant which are exculpatory, or which tend to mitigate punishment. 5. All written warnings, admonitions, rights, and waivers given by the state to Defendant before Defendant gave any written or oral statements, admissions or confessions or testimony at any examining trial or grand jury hearing. 6. All statements of a nature as would be arguably admissible as a "res gestae" statement, spontaneous statement, or other utterance which the State intends to introduce in its case in chief, either during the guilt/innocence stage, or during the punishment stage. 7. All witness statements as that term is used in Rule 615 of the Texas Rules of Evidence, whether in final, rough, draft, or other form. 8. All statements made by any suspect, party or witness to this alleged offense which tend to exculpate Defendant or mitigate punishment. 9.

A written transcription of all exculpatory or mitigating evidence

concerning Defendant produced in the grand jury proceedings which culminated in Defendant's indictment in this case. C. WARRANTS AND WAIVERS Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to warrants and/or any waivers in this case: 1. The arrest warrants and writs of capias, and affidavits in support thereof, obtained by law enforcement authorities to arrest Defendant in this case. D. LAW ENFORCEMENT AND INVESTIGATION Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to law enforcement and the investigation of this case: 1. Offense reports, police reports, crime scene investigation reports or records or reports of any third parties, by way of written memoranda, letters, notes or transcriptions involving the alleged facts of the offense, the crime scene or any location which may have a bearing on any issue of the case. 2. The name, rank and badge number of any law enforcement officer and any employee of the Office of the County Attorney who participated in any way in the investigation of this case, whether at the scene, in transporting Defendant, at the Police Station, at the jail or elsewhere. 3. The name and address of any person (including any suspects in this case) interviewed by representatives of the State of Texas, whether an employee of a law enforcement agency or of the Office of the County Attorney or otherwise, in connection with this case. 4. All hand-written, typed or otherwise recorded notes of law enforcement officers, relating to any part of this case (such as arrest, investigation, interrogation, interviews, or any other aspect) who investigated or participated in the preparation of this case for trial, enforcement agency or of the Office of the County Attorney or otherwise, in connection with this case.

E. PHOTOGRAPHIC EVIDENCE Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items regarding to photographic-related evidence in this case: 1. All photographs, videotapes, audiotapes, drawings, charts, and diagrams made by the state or law enforcement agency with reference to this case, including, but not limited to those of the scene of the crime and the scene of Defendant's arrest. 2. All photographs of the complainant, whether taken at the scene of the alleged offense, at the scene where the complainant was discovered, at the hospital, or at the time of the autopsy, if any. 3. All photographs of suspects which were shown to all witnesses to the alleged offense, concerning the identity of the perpetrator of the offense for which Defendant has been charged. 4. All photographs of Defendant which were used in the investigation of this case, including any photograph which may have been shown by any law enforcement officer to any potential witness in this case. F. PHYSICAL EVIDENCE Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to physical evidence in this case: 1. All physical evidence seized by the state from Defendant in connection with this case. 2. All physical evidence, property, documents, papers, books, accounts, letters, photographs, objects, records, or tangible things belonging to Defendant which are now in the possession of the state or its agencies. 3. All physical evidence in possession or control of the state which the state intends to offer at trial in this case. 4. The location from which each piece of physical evidence was found, the time it was found, and the name of the person who found it. 5. All other physical evidence, property, documents, papers, books, accounts, letters, photographs, objects, tangible things, or records which constitute or contain

evidence material to any matter involved in this case which are in the possession, custody, or control of the state or any of its agencies.

G. TESTS, REPORTS AND SCIENTIFIC EVIDENCE Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to tests, reports, and any other scientific evidence in this case: 1. All reports of scientific tests, experiments and comparisons, and the name of each person who made such report or performed such tests, experiments, or comparisons, including, but not limited to, weapons, bullets, shots, waddings, cartridge cases, tool marks, blood, DNA, bodily fluids, breath, hair, threads, drugs and controlled substances, fingerprints, medical or psychological examinations. 2. All toxicology reports based on an examination of the complainant, Defendant, Co-Defendants, co-conspirators, parties, accomplices, suspects, or any witnesses for the state. H. STATE EVIDENCE Defendant moves the Court to order the County Attorney to produce and permit counsel for Defendant to inspect the following designated items relating to State's evidence in this case: 1.

All evidence in possession of, or within the knowledge of, the state or any of its agencies, including impeachment evidence, which is favorable to Defendant and material either to guilt or to punishment. I. EXCULPATORY INFORMATION

Any and all exculpatory information, items, or evidence, including but not limited to: 1. Any prior inconsistent statements of witnesses for the State which are favorable to the Defendant or are exculpatory in nature regarding any alleged offense by the Defendant. 2. The names and addresses of any eyewitness to the offenses alleged which are favorable to the Defendant or are exculpatory in nature. 3. The failure or inability of any witness to identify the Defendant from

photographs, films, videos, or in person while in a lineup or show up; and 4. Results of any scientific test which are favorable the Defendant or exculpatory in nature including, but not limited to, ballistic test, fingerprints, drug tests, or DNA analysis. II. In support of this motion, Defendant would show that: (a) the items requested are in the exclusive possession, custody and control of the State of Texas or the United States Government by and through its agents, the police or the prosecuting attorney's office, and Defendant has no other means of ascertaining the disclosure requested; (b) the items requested are not privileged; (c) the items and information requested are material to this cause and the issues of guilt or innocence and punishment to be determined in this cause; (d) Defendant cannot safely go to trial without such information and inspection, nor can Defendant adequately prepare a defense herein; (e) Defendant's rights will be violated under Article 39.14 of the Texas Code of Criminal Procedure, Article I, Sections 3, 3a, 10, 13 and 19 of the Constitution of the State of Texas, and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America by such absent such discovery. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Honorable Court will grant this Motion for Discovery in all things. Respectfully submitted, Paul S. Harrell 613 Main St. Gatesville, TX 76528 PH (254)404-3323 FX (254)404-2183 BY:

CERTIFICATE OF SERVICE This is to certify that on October 1st, 2021, a true and correct copy of the above and foregoing document was served on the District Attorney's Office, Coryell County, by electronic service through the Electronic Filing Manager.

Paul S. Harrell ORDER FOR A SETTING On _____________________________, 2021, the Defendant filed a Motion for Discovery. The Court finds that the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED that a hearing on this motion is set for ________________, at ______________. Signed on _______________________________.

JUDGE PRESIDING

NO. ________________ STATE OF TEXAS vs. JANE DOE

§ § § § §

IN THE _____ DISTRICT COURT OF _____________ COUNTY, TEXAS

ORDER On

, 2021, came on to be heard Defendant's Motion For Discovery, and after

hearing same, the Court orders discovery as indicated in the body of the motion.

PRESIDING JUDGE

Gameday Ready

November 12, 2021 Laredo, Texas

SCRIMMAGING/PRACTICE: Pretrial Investigations

Speaker:

Paul S. Harrell

Law Office of Paul S. Harrell 703B E. Main Street Gatesville, Texas 76528 (254) 404-3323 www.paulsharrelllaw.com paul.s.harrell@gmail.com

Game Day Ready Pre Trial Investigations

SCRIMMAGING TO GET READY By Paul S. Harrell, Adapted from Clay Steadman and Dustin Nimz INTRODUCTION

Undoubtedly, you and your office have a system for collecting and using information about a case. This is neither an exhaustive treatise on the topic nor a definitive guide. I have found that organizing the gathering of information before a case can be beneficial later. Few groups teach readiness better than TCDLA and fewer still love their acronyms as much. I present to you the USMC, arguably near the best at readiness training and acronyms. One system they use is B.A.M.C.I.S., a six-step troop readiness program, for our purposes: Begin the plan Arrange for reconnaissance Make reconnaissance Complete the plan Issue Orders Supervise The idea here (obviously, a short explanation) is how to get troops from point 1 to point 2 efficiently while maintaining the goal of accomplishing the mission. Certainly, this discussion is about pretrial investigation, or, more importantly, how to manage pretrial investigations, but I am not about to argue with 245 years of training. In the next few pages, we aren’t going to be able to drill in all these principles so please think about them only as a starting point to getting all of the information to help our clients. BEGIN THE PLAN At the beginning of every case, it can seem daunting to wrap your head around all the things you will have to do/collect and when you will have to do/collect. In brief, you know you are going to have to investigate the following: 2

Game Day Ready Pre Trial Investigations

a. Client’s statement b. Witness statements c. Affidavits of Non-Prosecution (which is a type of statement) d. Offense reports e. I.R.S. records f. Property records g. Court records (probation/judgments) h. Attorney General records and information i. Texas Department of Criminal Justice Institutional Division j. County Jail records k. Police Department records of complaints l. Video Cam surveillance records m. Crime Lab records n. Medical Examiner (autopsy) reports o. Crime Stoppers records p. Social Media in all forms q. Clerk’s records r. Personnel records (Employment) s. Medical records t. TCOLE reports u. Mental Health/MHMR v. Education/School records

Game Day Ready Pre Trial Investigations

w. Military Records (DD-214 is a good first steps but many troops also have counseling statements and awards/certificates that aren’t blanketly explained in the DD-214) x. Counseling and Therapy records As you start the plan, the client is going to be driving the bus. He/she will have their own ideas, likely, about what information you need to know but you still need them to get you to the point of arrest and why they are in the jailhouse or on bond. It is not a bad idea to start engaging some of the other parties as well. Also, part of the planning process is figuring out the other “who’s” as well. The Texas Fair Defense Act requires that an appointed attorney “make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed.” In order to meet our requirement for same day contact my office immediately sends a letter to every client to let them know that I have been appointed to their case. In this letter, it states that I will come visit them if they are in jail or requests that they contact my office for an appointment if they are out on bond. In addition to the letter, we send a Criminal Intake form (located in the Appendix) to each client in custody. The form is two pages, front and back, and provides my office with all of the basic information that I will need to start on the case; biographical information, personal contacts, written permission to discuss the case with others, witnesses, criminal history, and mental and physical illness information. This letter, along with a SASE and the client information form are under one ounce (thus requiring only one stamp) and provides me with a way to start working on the case immediately. It also gives my client important advice to not talk to law enforcement nor discuss the case on the monitored jail phones. Client contact is not only required but is essential in getting the information that the attorney will need for the case. Following the letter, the lawyer must talk to the defendant face-to-face as soon as possible. For retained clients this is generally easy an easy task because they will come to the office to consult and hire. For appointed clients, it is more difficult because the attorney will often need to track them down. Jail clients can be the easiest to find but are often the most difficult to 4

Game Day Ready Pre Trial Investigations

visit for the busy attorney. In many counties you can take advantage of secure video conferencing software to set up an initial trust-building meeting with the client, allowing them to know who their lawyer is and that someone is working on the case. Phone and video meetings, however, are limited as they present a barrier between lawyer and defendant. It is hard for the defendant to trust someone on a screen and reveal important details about the case and his life. Nothing is as beneficial as a face-to-face meeting where your client can look you in the eyes and discuss his needs. When lawyers meet with clients for the first time it is common to focus on the events surrounding the offense; however, “crime doesn’t happen in a vacuum” 1. The lawyer must go further than the offense at hand to understand the defendant’s history so he can develop an understanding of how the offense was committed, as well as important information that will be useful for further investigation and during negotiations. The discussion begins at birth. The conversation must start at the beginning because all the influences and choices in a defendant’s life eventually brought them to be accused of the offense. The reason to ask these questions is because the practitioner needs to find something that the jury can relate to and identify with the defendant. ARRANGE FOR RECONNAISANCE In short, reconnaissance is getting a sneak peek at the mission or the end goal. Arranging for it is simply gathering the resources to get the task done. This is the stage where I start to put my pieces into play. Assuming you will need an investigator, and you may not have the funds to hire one yourself, file a motion to get one appointed. Make sure you have a plan in place of how you want the investigator to proceed (go to the scene, talk to witnesses, review data dumps, etc.) This plan shouldn’t be vague because ambiguity almost always fouls a plan. For example, “go talk to these witnesses about X” is far different than “go talk to witness X about issue Y”. That small difference is going to help you and the investigator streamline the process.

Game Day Ready Pre Trial Investigations

Many folks file this motion ex parte, which is perfectly acceptable. I have used only one or two investigators over the last five years, so I presume the State knows I’m going to have one and who he is going to be. There is certainly a time and place for the EX PARTE motion, or, more importantly, the EX PARTE hearing. This is a tactical decision for the individual lawyer. I have a solo practice and tend to think of the investigator as a part of the team; therefore, the state may know he is coming, but they are also aware of what he is bringing to the table. More often than not, the State’s knowledge about who is investigating or what is being investigated is their problem, not mine. In this same stage, get your other experts on board, e.g., make them aware of possible usage. In a sex related case, you can assume you will need an evaluation and it may be beneficial to have a conversation with that professional about what they would like to know before talking with your client. There probably isn’t a cause number at this point so consider sending a notice of appearance that also asks for 39.14 compliance. We say, “informal”, in case the State wants to complain about the parameters of the request, knowing that we will file a 39.14 motion and order as soon as the case is filed. Two things are happening here: 1. you are putting the State on notice that they need to comply; and 2. you can show your client that you have made a request. In the ongoing process of interviewing and consulting with your client you will have likely gathered some of the following: a. b. c. d. e. f. g. h.

Client’s version of the incident Copy of the warrant of arrest and the PC affidavit, if applicable If applicable, a copy of the affidavit to support any search warrants Supportive (or non) eyewitnesses Relationship between the complaining witness and the client Other factors your client believes may be helpful All media reports Basic criminal history of all involved

Game Day Ready Pre Trial Investigations

My policy is to get the 39.14 motion/order e-filed directly behind the indictment (if your jurisdiction has been increasing the rate of informations due to the pandemic, as mine has, treat it like an indictment for discovery purposes). One of the early issues with “The Michael Morton Act” was how to resolve any disputes. I believe some of the recent revisions have resolved that for the most part but you still want to get a signed order as soon as possible to prevent any problems down the road. MAKE THE RECONAISSANCE Equal parts: 1. Most Important Stage; 2. Hardest Stage. I always tell clients that the only real resources I have are my time and my reputation and time is limited. This is why I spend a lot of ‘time’ thinking and preparing when initially putting the planning and arranging into action. My primary objectives are the scene and the witnesses. Additionally, the client has certainly helped get us here but now we have a duty (based on the present state of “The Michael Morton Act”) to independently investigate the allegations. With respect to the State’s file, the following are examples of what to look for that can assist in resolving the case: a. b. c. d. e. f. g. h. i. j.

What is the theory of the prosecution? The reason for arrest? How was probable cause established? What witnesses were identified in the investigation? Are there discrepancies between the reporting about witnesses and your client’s version? Are there discrepancies about the narrative (Let your client review the information)? Have you dealt with this officer(s) before? Is there a recognizable pattern of behavior? Has this officer(s) dealt with your client before? Has the prosecution dealt with him before? If the indictment alleges enhancements, or your criminal history search indicates the possibility, you need to look at prior

Game Day Ready Pre Trial Investigations

judgments for some assistance. Can they prove them; and does it change anything regarding the present case? The entire scene must be investigated and documented; here are examples of things to investigate: a. If the scene is a residence, determine the dimensions and square footage (this applies to any enclosed space) b. What is the layout? c. If a roadway or open space, what is the visibility? d. What is the lighting situation? e. If there are eyewitnesses, where were they at the time and what does that view look like? f. What is the client’s connection to the scene? g. Complaining witnesses’ connection? h. Do any of the witnesses have a connection to the scene? i. Are we talking a remote or populated area? j. If applicable, how long did it take law enforcement and/or emergency services to respond? k. Pictures and video of surrounding businesses or residences (complete a canvas of the surrounding area) (Timing is an issue here because some businesses re-use the tape after a certain period of time. I’ve seen as long as one week and as short as 24 hours). It is surprising how many and what types of residences have ring cameras now l. Google Maps and Google Earth (Be careful, these are good for distances but a poor substitute for straight line video) m. Dispatch Logs and 911 calls n. Property records (deed) will determine ownership. You may have to get a rental or lease agreement to determine possession. o. Social media accounts (Twitter, Snapchat, Facebook, Instagram, Tik-Tok, Pinterest) are invaluable resources regardless but can also establish a connection between people and the scene. p. Get a copy of the floor plan (county records or online)

Game Day Ready Pre Trial Investigations

q. Have a tape measure (About five years ago, I bought a wheeled tape measure for $18.98 on Amazon; it has paid for itself many times over) Getting gameday ready for trial cannot happen without interviewing all witnesses. Interviews often reveal the accuracy, or lack thereof, of statements attributed to individual witnesses. You also never know if the State is giving you complete statements. COVID-19 has certainly thrown a wrench into trial preparation, if your jurisdiction is even allowing trials at this point; but to the extent possible witnesses should be interviewed in person. They are much less likely to decline to be interviewed in person versus telephonically. Telephonic interviews are impersonal, and people are, generally, more comfortable looking eye to eye with the interviewer. Whenever possible, interviews should be recorded even if all you have is a smart phone. Recording an interview can provide impeachment material in the event of an inconsistent statement at trial. Sometimes, recordings can clear up any claim that the lawyer or the investigator coerced the statement or posed as law enforcement during the interview. It is not uncommon for lawyers to want to do the bulk of the work in pre-trial preparation so that they are intimately familiar with every facet of the case, but, whenever possible, a professional investigator should conduct the interviews to minimize the possibility of a conflict of interest. When investigating witnesses, one of the first stops should be social media. For whatever reason, people post all kinds of things for strangers to see about them. It is amazing what some people will say or do on social media. It can be a goldmine for background information like drug use, alcohol use, promiscuity, acts of violence, religious beliefs, eating habits, illness (real, imaginary, mental), employment, education (or lack thereof), travel habits, and much more; you can also monitor the comments for information about the case or potential witnesses. A person’s friends list may help lead you to other potential witnesses who can then be interviewed for background.

Game Day Ready Pre Trial Investigations

With all the good information you can get from social media, there are substantial risks. I generally don’t want my client, or his family, involved in any conversations online with the complaining witness or any witnesses; it is advisable that they don’t engage in social media during the pendency of the case. Same goes for lawyers, based on what you are posting, friending, or liking there are very real ethical issues. You do not want to be accused of influencing and/or tampering with the complaining witness or potential witnesses. A hands-off approach to social media is best, meaning, find the information and monitor it but don’t post or comment to avoid any misinterpretation. COMPLETE THE PLAN As you are gathering information, discovery, and evidence, what do you do with it? If I know a case is going to trial, I will go ahead and make a trial notebook. I have a collection of 3- or 4-inch binders laying around for that purpose. TCDLA has a set of tabs that is a good start but sometimes that set may not be exhaustive for the type of case or the dynamics of your particular case. Below are some examples of tabs I may use in a trial. a. Indictment b. Offense Reports (for every LEO you will want to have their narrative in their tab, but I like to have one full version of the completed report for reference) c. Dispatch Log(s) d. 911 call(s) (have the transcript whenever possible) e. Client interview (I generally transcript this as well) f. Communications with client g. Communications with the Court h. Communications with the State i. Expert(s) (Consider using multiple tabs for each expert. In one you should have the report or evaluation on this case, and in the others any background information you have about the expert) j. Law Enforcement (TCOLE reports, any disciplinary information, individual narratives, or supplements.) Note: For each officer, I make a transcript of their report, meaning I underline and number 10

Game Day Ready Pre Trial Investigations

each line of the report for quick reference when questioning that witness. That is why I have a tab for a clean copy. k. Witness (Statements if any, relevant background information, any public record you found, anything from private database searches) l. Medical records m. Miscellaneous records (For example, if there are CPS records, or, a large data dump, you will want it to have its own tab for quick reference) n. Complaining Witness o. Draft of Jury Charge p. Search Warrant q. Pretrial Motions r. Jury List s. Scene research (you will generally have multiple witnesses attached to the scene) t. Client u. Co-defendants, if any The order is a matter of personal preference, but I leave some room to move things around at the last minute depending on what I think will be the flow of the trial. Mine is a rural solo practice so I know that I likely won’t have a second chair at trial, and I don’t have a large staff to review or discuss cases; so, over the years I have taken to having a fellow attorney give me thirty minutes or an hour to talk about any discovery issues or avenues I may not have travelled down. Sometimes that outside perspective will lead you to information you hadn’t thought about because of your focus on the immediacy of the case. Of course, a second chair is optimal, but we are all busy and all have our own caseloads.

Game Day Ready Pre Trial Investigations

ISSUE ORDERS /SUPERVISE Plans tend to crumble when the objective is not clear, so supervision should be an ongoing process. You know what your objective is (based on the theme/theory of your case) and how best to get supportive information to back that theme. Whatever assistance you obtain needs to have a clear understanding of your goal as well so that the preparation is efficient, and you aren’t chasing rabbits down holes. Please consider the above a means of organizing your pretrial investigation; I do not expect you to think like a Marine but certainly organization is a trait of the well-prepared lawyer. Many cases are won by out-prepping the other side. Good luck and good verdicts.

Game Day Ready Pre Trial Investigations

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

Topic: Lunch Presentation: Keep Your Head in Game | Mental Health

Speaker:

Joseph Hoelscher 3030 Nacogdoches Rd Ste 222 San Antonio TX, 78217-4540 (210) 222-9132 phone (888) 519-8229 fax joe@hgclaw.com www.hgclaw.com

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

Topic: Instant Replay | Technology in the Courtroom

Speaker:

Cynthia Orr

310 S Saint Marys St. 29th Floor San Antonio TX, 78205-3117 (210) 226-1463 phone (210) 226-8367 fax whitecollarlaw@gmail.com www.ggandh.com

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

Technology in the Courtroom in Criminal Cases Cynthia Eva Hujar Orr Goldstein & Orr 310 S. St. Mary’s Street, 29th Floor Tower Life Building San Antonio, Texas78205 210-865-4222 Criminal cases will typically involve technology under three circumstances. The alleged offense involves technology (conduct conducted on the Internet or using electronic devices). The investigation involves the use of technology to discover evidence in support of charging a person with crime. And the third area where it will arise is when one must understand technology to master the evidence and present it in court. No matter the area, however the Texas Disciplinary Rules of Professional Conduct require us to have competence in technology in order to provide competent legal representation. Comment 8, to Rule 1.01of the Rules of Professional Conduct specifically set out that a competent lawyer is up-to-date on current technology.” i Crimes that can be committed using technology include obtaining and processing child pornography, soliciting children for the purpose of sex trafficking or producing child pornography, submitting fraudulent claims to a healthcare benefit program, executing a ransom ware attack, identity and information theft committed through phishing, bank fraud, crypto-currency offenses, virus attacks, online gambling, fraudulent credit card transactions, stalking, revenge porn, stored evidence of criminal activity on an electronic device, and the mere generation of fraudulent documents or currency using a computer. Therefore, counsel must be familiar with the way that computers, smart phones, tablets, and other electronic storage devices store and maintain information. The basic idea that and electronic device cannot indicate who its user is it’s important. The portability of our electronic devices in the ability of persons even without sophisticated skills to gain access to them cannot be forgotten. For example, a recent television ad wireless 1

Internet services makes the point. Without good security practices in place a home wireless Internet access to another device is using it can be explored for information or can be used to commit criminal offenses. In the ad a father walks into his home and invite some questionable characters inside with him who he said we’re hanging around outside the home. One of the scruffy visitors slips an item from a drawer in his pocket while another asks one of the children the name of their first pet, and yet another asks the father for his pass code to the alarm system for the home. The mother then pushes a setting on her telephone and all the undesirable people disappear. The tagline is that wireless Internet security in the home is important to maintain. Otherwise, it's just like you are inviting undesirables inside your home. The government has also recently warned its employees to stay off of public Wi-Fi in hotels, airports, and coffee shops where viruses can spread to their devices or hackers can launch ransom where attack’s or steal financial information. If a client is charged with a crime committed using a computer and or the internet, it is important to know how many other persons could access that electronic storage device directly or remotely. It is not just using a public Wi-Fi system that will allow access to harvest information or use the device. Enabling Bluetooth connections or even the capability to make a purchase by tapping a reader with the phone can invite persons to access non-encrypted data. Nefarious persons can also spoof hotel, coffee shop, airport, and other free Wi-Fi networks. Through these means a person can harvest passwords and the entire contents of passing cell phones, for example. ii This knowledge provides potential defenses to accusations that your client was using an electronic device to commit crimes. So, there is no excuse for failing to employ a forensic analyst to determine when data was placed on a particular electronic device, to determine whether files on these devices were even opened, where the data was stored (whether in a visible place or a non-visible location), and when they were last accessed. One would think that law-enforcement would no longer tamper with electronic evidence. But I have a case today where law enforcement accessed the internet and place thousands of artifacts on a computer after it was seized and after they took it to the police station. Whoever did this, changed the time setting on the computer to help cover their tracks.

Offenses that incidentally utilize a computer do not present a sophisticated technology challenge when dealing with law-enforcement investigation of the offense. One needs basic computer storage and forensics knowledge for such a case. However, there are cyber-crimes that make sophisticated use of the Internet and computers and also involve much more sophisticated investigation techniques. Internet crimes may involve an investigation into how particular software works. It may involve very sophisticated investigation into means to identify those persons using phishing emails or conducting the ransom ware attack using the dark web. It is also critical to know what investigative techniques are used to search electronic devices. In recent days, private commercial service providers have formed partnerships with law-enforcement, which is taking the position that this commercial information is not private and can be accessed without a search warrant. However, this not the case. It is clear from the privacy protection afforded to our emails, that not all information we provide to private commercial endeavors is available to law enforcement without a warrant. The contents of ours cell phones is stored on commercial service providers, but a unanimous US Supreme Court says we have the right to privacy in the contents of our cell phones under the Riley iiicase. And, the Court established that the doctrine of plain view does not apply in a digital search. The Court of Criminal Appeals followed suit in Love. iv Just because we use commercial entities for services does not mean we have abandoned or forfeited our rights to privacy to our information. So, every type of information that an investigation attempts to access should be questioned; even when it’s stored on service providers clouds or a commercial provider’s equipment. Further, it’s important to keep in mind that a search warrant for a computer, a cell phone, or email account that alleges one will find evidence of specific offenses for which the warrant affidavit establishes probable cause, does not authorize the search of the entire computer, the entire phone, or every email in a person’s email account. Just as a search warrant doesn’t authorize the search of every nook and cranny of a home;v a search warrant for a telephone that contains all the details of life does not authorize the search of all those details. For example, a search for evidence of drug distribution communications on a phone 3

belonging to a person charged with a drug offense, does not authorize the search of the photos on that phone. Also, web-based sting operations are based on programs and pre-warrant searches that are illegal and provide fertile grounds for suppression. But you have to do your homework about the proprietary software being used in conjunction with law-enforcement to conduct these searches. The Child Protection System, software developed by the Child Rescue Coalition in Florida, is proprietary. It likely conducts warrantless searches to identify persons’ file sharing through non-Child Protection System programs. First, counsel must consider whether those sharing programs have features that operate to perform functions that the user is not aware of; like file sharing. This can combat the suggestion that an accused is knowingly or intentionally distributing child pornography. Second, counsel should subpoena the agent for service of process in Texas for the Child Rescue Coalition for the proprietary information about the software.vi This information should be provided to a forensic expert to advise you whether a warrantless search has taken place by discovering how the Child Protection System software functions. In addition, counsel must examine and deal with the fact that child porn exists among legal images and may only be images of virtual children. The contraband pictures may be on a client’s device without their knowledge. The images may never have been seen by the client, or even opened by the client. The Child Protection System is not the only software used in such investigations. So, research the investigative means used and challenge each in a sophisticated way, with technical competence. If law enforcement does obtain a search warrant for electronic evidence; defense counsel must ask two questions. First, in a physical search was the physical search for electronic evidence authorized by a warrant to stating probable cause that the device contained evidence of crime? Second did was a second electronic search authorized by a warrant providing probable cause to seize the electronic data that was seized?vii Next, counsel should consider whether the electronic evidence will be admissible in court. Many data production processes, particularly concerning cell phone records and cell tower location data is not stored according to verified and accurate processes. Often, this digital information is provided in a spread sheet that can be altered. The Judge 4

in the Markel American Insurance Company viii case wrote that electronic evidence can be subject: “to far greater levels of scrutiny than applied to non-digital evidence when deciding whether to admit it. …If you identify the digital evidence you want to use prior to trial, learn as much as possible about how it works (using the Internet can be an inexpensive and helpful way to do so), carefully select which authentication method you want to use, and (if it involves using an expert or subpoenaing records) make arrangements sufficiently far in advance to be prepared at trial, you will greatly enhance your chances of success.” ix Computer forensics also must be examined carefully to make sure that the software tools employed are valid and reliable. x “At what point should a mess of ones and zeros be trusted either as evidence, or to provide it?” xi There is a lack of information on error rates using digital forensic techniques and a lack of transparency by the software developers and purveyors of the programs. xii Take for example, the software programs used by law-enforcement to plot cell phone location tower information on geographic maps of towns and locations. The software used produces pie shaped icons to indicate the location where a cell phone must be located if it has utilized a particular tower. However, if counsel employs real drive time testing of the coverage area of a tower, the coverage area turns out not to be pie shaped at all and are not the distances indicated in the software plotted maps. The plotting software is not reliable, not even close. If counsel is educated, then they can cross examine the witness offering such plotted maps to show that the pie shaped icons actually overlap, that direction is not a given, that if the signal relayed is a text message or an app update it does not use the closest tower at all, and there’s not a good indication of even general location. And further, it is only voice calls that are connected, not voice mail, that will indicate a general area a person is located if the tower is fully functioning and does not have heavy traffic at the time. 5

Further, Counsel should know that bodies of water, buildings, and other natural and man-made structures will cause significant anomalies on the cell signal and the tower used. In one case, I had a signal from a phone use a tower on both sides of a a bay within milliseconds of each signal. The body of water created the appearance that the phone user flew like Superman, at super speed, across a great body of water in no time. But, of course the phenomena observed was that water affects cell tower signals. Lawyer should also know more about law-enforcement tools used to collect information. GPS Geo fencing that is typically stored in Google, GPS tracking, use of stingrays and false cell phone towers, body worn camera videos and audio and facial recognition programs each have fatal flaws or limitations that can be leveraged to the defense advantage. Technical competency also requires counsel to be familiar with joint law enforcement task forces, centralized databases, and national clearinghouses that law enforcement use. xiii Further, counsel must have some basic knowledge about the dark web, its servers, and the ability to track information and crypto-currency; is necessary today when defending cases of identity theft, money laundering, ransomware attacks, and the like. In many investigations, law enforcement is not able to identify activity down to an individual.xiv Many search warrants issued and served on internet service providers do not comply with state search warrant laws for their issuance and service. Law enforcement tends to serve these by fax to a commercial service provider directly, instead of the person on whom Texas law requires such warrants to be served. A little reading of the statutes authorizing such warrants will reveal the basis to suppress the evidence obtained this way. Further, in fraud cases law enforcement has made more expensive use of statistical data and it has equated certain statistics with criminality. For example, if too much of a particular prescription drug is being prescribed in a geographic location or by a particular doctor, instead of recognizing the doctor’s competency or the actual medical need for the medication; the presumption is that medications are being prescribed outside of proper medical use. This is entirely without an examination of the patient 6

file or the need for the treatment. Counsel must challenge these invalid statistical assumptions and require proof beyond a reasonable doubt with regard to each and every allegation that the doctor has committed a controlled substance distribution offence rather than provided legitimate medical treatment. In the court room counsel must marshal every advantage through technical competency. A good understanding of PowerPoint or Keynote and adult learning and retention of information is important. But, counsel should also know how to use Trial Director to show scrolling transcripts of audio or video recordings. This gives counsel a superior command of the information with which to cross examine the speaker to challenge what they are now saying. There’s nothing more powerful than the witnesses’ own words to the contrary that will grab a jury and turn a case in your favor. Use of case preparation programs like Case map or other data bases is important to build a command of the facts and how they relate to your case. Once in the courtroom, you should already know how to operate the Elmo projection device or computer interface hardware. Visit the courtroom, sit in the witness chair, sit in the jury box or gallery, and use the hardware. Most importantly, make sure it is available and ready for you to use, or make alternate arrangements that you have practiced in that courtroom in advance. Also, it would be beneficial for you and your firm to have Clio (a cloud-based management software) to access your files. People say that there is no longer a simple case since electronic data makes discovery in cases so overwhelming. When counsel has a terabyte or a multi - terabyte case, they must employ some forensic tools to consume and use evidence. The in the January 6 protest/insurrection in Washington DC this year, had to reach out to two private vendors to help gather, catalog, and examine the evidence taken on cell phones, cameras, and close circuit television cameras at the Capitol. And, still one doubts whether they will fully gain control of all the information. This gives me great fear that substantial amounts of Brady information will be missed. Just imagine that some person among the thousands present may have videotaped, on their telephone, my client leaving before the Capitol doors were breached; or before any violent action was taken against law-

enforcement. How can I gain access to that information, even if it is in the government’s possession in the telephone owner’s case? Since we are in a world that continues to rely more and more on massive quantities of information and rapidly developing technology, we as counsel must keep up with technology and maintain competence. This is whether through it is through our own knowledge or through relying on each other and experts who have developed forensic software that’s valid and reliable. I hope this paper has given me food for thought and along with my presentation and idea about next steps when confronted with technology involved in the commission of offenses, and the investigation of them, and in the courtroom. “Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain professional and competent in the practice of law, including the benefits and risks associated with relevant technology.” ii David E. Sanger and Julian E. Barnes, Beware Free Wi-Fi: Government Urges Workers to Avoid Public Networks, The New York Times, August 5, 2021. iii Riley v, California, 134 S.Ct 2473 (2014). iv Love v State, 543 A.W.3d 835 (Tex Crim. App 2016). v If one is searching for a stolen car, they cannot look in the drawers, cabinets, and closets of a home. vi Olivia Solon, Inside the surveillance software tracking child porn offenders across the globe; The Child Protection System helps police triage child pornography cases. But as the system expands, it’s facing growing privacy concerns, NBC News, July 17, 2020. Nbcnews.com/tch/internet/inside-surveillance-software-tracing-child-pornoffenders-across-globe-n1234019. vii Martin Novak, Digital Evidence in Criminal Cases Before the U.S. Courts of Appeal: Trends and Issues for Consideration. 14 Journal of Digital Forensics, Security and Law, number 4 (April 2020). viii Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D. Md. May 4, 2007) providing guidance on admissibility of electronic evidence. ix Quoted in Martin Novak, Digital Evidence in Criminal Cases Before the U.S. Courts of Appeal: Trends and Issues for Consideration. 14 Journal of Digital Forensics, Security and Law, number 4 at page 7 (April 2020). x Id. xi Id. xii Id. at pages 7-8. xiii Dan Koenig, Investigation of Cybercrime and Technology-Related Crime (Neiassociates.org/cybercrime-and technology) last viewed October 14, 2021. i

Recognizing that no standards for gathering and maintaining digital forensics and databases exist. xiv Dan Koenig, Investigation of Cybercrime and Technology-Related Crime (Neiassociates.org/cybercrime-and technology) last viewed October 14, 2021.

Technology in the Courtroom in Criminal Cases Cynthia Eva Hujar Orr Goldstein & Orr 310 S. St. Mary’s Street, 29th Floor Tower Life Building San Antonio, Texas78205 210-865-4222 Criminal cases will typically involve technology under three circumstances. The alleged offense involves technology (conduct conducted on the Internet or using electronic devices). The investigation involves the use of technology to discover evidence in support of charging a person with crime. And the third area where it will arise is when one must understand technology to master the evidence and present it in court. No matter the area, however the Texas Disciplinary Rules of Professional Conduct require us to have competence in technology in order to provide competent legal representation. Comment 8, to Rule 1.01of the Rules of Professional Conduct specifically set out that a competent lawyer is up-to-date on current technology.”i Crimes that can be committed using technology include obtaining and processing child pornography, soliciting children for the purpose of sex trafficking or producing child pornography, submitting fraudulent claims to a healthcare benefit program, executing a ransom ware attack, identity and information theft committed through phishing, bank fraud, crypto-currency offenses, virus attacks, online gambling, fraudulent credit card transactions, stalking, revenge porn, stored evidence of criminal activity on an electronic device, and the mere generation of fraudulent documents or currency using a computer. Therefore, counsel must be familiar with the way that computers, smart phones, tablets, and other electronic storage devices store and maintain information. The basic idea that and electronic device cannot indicate who its user is it’s important. The portability of our electronic devices in the ability of persons even without sophisticated skills to gain access to them cannot be forgotten. For example, a recent television ad wireless 1

Internet services makes the point. Without good security practices in place a home wireless Internet access to another device is using it can be explored for information or can be used to commit criminal offenses. In the ad a father walks into his home and invite some questionable characters inside with him who he said we’re hanging around outside the home. One of the scruffy visitors slips an item from a drawer in his pocket while another asks one of the children the name of their first pet, and yet another asks the father for his pass code to the alarm system for the home. The mother then pushes a setting on her telephone and all the undesirable people disappear. The tagline is that wireless Internet security in the home is important to maintain. Otherwise, it's just like you are inviting undesirables inside your home. The government has also recently warned its employees to stay off of public Wi-Fi in hotels, airports, and coffee shops where viruses can spread to their devices or hackers can launch ransom where attack’s or steal financial information. If a client is charged with a crime committed using a computer and or the internet, it is important to know how many other persons could access that electronic storage device directly or remotely. It is not just using a public Wi-Fi system that will allow access to harvest information or use the device. Enabling Bluetooth connections or even the capability to make a purchase by tapping a reader with the phone can invite persons to access non-encrypted data. Nefarious persons can also spoof hotel, coffee shop, airport, and other free Wi-Fi networks. Through these means a person can harvest passwords and the entire contents of passing cell phones, for example.ii This knowledge provides potential defenses to accusations that your client was using an electronic device to commit crimes. So, there is no excuse for failing to employ a forensic analyst to determine when data was placed on a particular electronic device, to determine whether files on these devices were even opened, where the data was stored (whether in a visible place or a non-visible location), and when they were last accessed. One would think that law-enforcement would no longer tamper with electronic evidence. But I have a case today where law enforcement accessed the internet and place thousands of artifacts on a computer after it was seized and after they took it to the police station. Whoever did this, changed the time setting on the computer to help cover their tracks.

Offenses that incidentally utilize a computer do not present a sophisticated technology challenge when dealing with law-enforcement investigation of the offense. One needs basic computer storage and forensics knowledge for such a case. However, there are cyber-crimes that make sophisticated use of the Internet and computers and also involve much more sophisticated investigation techniques. Internet crimes may involve an investigation into how particular software works. It may involve very sophisticated investigation into means to identify those persons using phishing emails or conducting the ransom ware attack using the dark web. It is also critical to know what investigative techniques are used to search electronic devices. In recent days, private commercial service providers have formed partnerships with law-enforcement, which is taking the position that this commercial information is not private and can be accessed without a search warrant. However, this not the case. It is clear from the privacy protection afforded to our emails, that not all information we provide to private commercial endeavors is available to law enforcement without a warrant. The contents of ours cell phones is stored on commercial service providers, but a unanimous US Supreme Court says we have the right to privacy in the contents of our cell phones under the Riley iiicase. And, the Court established that the doctrine of plain view does not apply in a digital search. The Court of Criminal Appeals followed suit in Love.iv Just because we use commercial entities for services does not mean we have abandoned or forfeited our rights to privacy to our information. So, every type of information that an investigation attempts to access should be questioned; even when it’s stored on service providers clouds or a commercial provider’s equipment. Further, it’s important to keep in mind that a search warrant for a computer, a cell phone, or email account that alleges one will find evidence of specific offenses for which the warrant affidavit establishes probable cause, does not authorize the search of the entire computer, the entire phone, or every email in a person’s email account. Just as a search warrant doesn’t authorize the search of every nook and cranny of a home;v a search warrant for a telephone that contains all the details of life does not authorize the search of all those details. For example, a search for evidence of drug distribution communications on a phone 3

in the Markel American Insurance Companyviii case wrote that electronic evidence can be subject: “to far greater levels of scrutiny than applied to non-digital evidence when deciding whether to admit it. …If you identify the digital evidence you want to use prior to trial, learn as much as possible about how it works (using the Internet can be an inexpensive and helpful way to do so), carefully select which authentication method you want to use, and (if it involves using an expert or subpoenaing records) make arrangements sufficiently far in advance to be prepared at trial, you will greatly enhance your chances of success.”ix Computer forensics also must be examined carefully to make sure that the software tools employed are valid and reliable.x “At what point should a mess of ones and zeros be trusted either as evidence, or to provide it?”xi There is a lack of information on error rates using digital forensic techniques and a lack of transparency by the software developers and purveyors of the programs.xii Take for example, the software programs used by law-enforcement to plot cell phone location tower information on geographic maps of towns and locations. The software used produces pie shaped icons to indicate the location where a cell phone must be located if it has utilized a particular tower. However, if counsel employs real drive time testing of the coverage area of a tower, the coverage area turns out not to be pie shaped at all and are not the distances indicated in the software plotted maps. The plotting software is not reliable, not even close. If counsel is educated, then they can cross examine the witness offering such plotted maps to show that the pie shaped icons actually overlap, that direction is not a given, that if the signal relayed is a text message or an app update it does not use the closest tower at all, and there’s not a good indication of even general location. And further, it is only voice calls that are connected, not voice mail, that will indicate a general area a person is located if the tower is fully functioning and does not have heavy traffic at the time. 5

Further, Counsel should know that bodies of water, buildings, and other natural and man-made structures will cause significant anomalies on the cell signal and the tower used. In one case, I had a signal from a phone use a tower on both sides of a a bay within milliseconds of each signal. The body of water created the appearance that the phone user flew like Superman, at super speed, across a great body of water in no time. But, of course the phenomena observed was that water affects cell tower signals. Lawyer should also know more about law-enforcement tools used to collect information. GPS Geo fencing that is typically stored in Google, GPS tracking, use of stingrays and false cell phone towers, body worn camera videos and audio and facial recognition programs each have fatal flaws or limitations that can be leveraged to the defense advantage. Technical competency also requires counsel to be familiar with joint law enforcement task forces, centralized databases, and national clearinghouses that law enforcement use.xiii Further, counsel must have some basic knowledge about the dark web, its servers, and the ability to track information and crypto-currency; is necessary today when defending cases of identity theft, money laundering, ransomware attacks, and the like. In many investigations, law enforcement is not able to identify activity down to an individual.xiv Many search warrants issued and served on internet service providers do not comply with state search warrant laws for their issuance and service. Law enforcement tends to serve these by fax to a commercial service provider directly, instead of the person on whom Texas law requires such warrants to be served. A little reading of the statutes authorizing such warrants will reveal the basis to suppress the evidence obtained this way. Further, in fraud cases law enforcement has made more expensive use of statistical data and it has equated certain statistics with criminality. For example, if too much of a particular prescription drug is being prescribed in a geographic location or by a particular doctor, instead of recognizing the doctor’s competency or the actual medical need for the medication; the presumption is that medications are being prescribed outside of proper medical use. This is entirely without an examination of the patient 6

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

Topic: Special Teams | Experts & Witnesses

Speaker:

Jennifer Zarka 620 N Flores St San Antonio TX, 78205 (210) 468-0400 phone (210) 855-5630 fax jenny@zarkalawfirm.com www.zarkalawfirm.com

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

SPECIAL TEAMS- EXPERT WITNESSES A criminal trial is serious business for all involved- especially for the accused. Every decision made by the defense team in a criminal trial can greatly impact the outcome of the case. In American football, special teams are defined as those players on the field during kicking plays. Kickers are specialists who put foot to the ball during these plays. Kickers are not the only players on the field during these plays; there are 21 other players on the field during each kicking play. Kicking plays make up about 20% of plays in a football game, but the resulting field position has a huge impact on the results. A kicker can be the hero of a game, but also the villain. In some criminal trials, experts are the “special teams” players, used by the parties to help the fact-finder make important decisions about the evidence in a case. Your expert will not be on the stand for an entire trial; sometimes not at all. Yet, your expert can greatly impact the outcome by influencing how the fact-finder views the evidence. There are two categories of expert witnesses, each with different rules surrounding their participation in a trial. These are consulting and testifying experts. Just as in football, an expert witness can make or break an entire trial. Specialty Blocking- Using Consulting Experts to Thwart the State’s Case A consulting expert is one who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not expected to testify. The Court of Criminal Appeals has agreed that the policy behind the consulting expert privilege is to encourage parties to seek advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary’s efforts and diligence. These experts should be “used as a shieldnot as a sword (not to thwart justice or to defeat the salutary object of discovery).” Pope v. State 207 S.W.3d 352 (Tex. Crim. App. 2006)

There is no need to disclose a consulting expert under Article 39.14 of the Texas Code of Criminal Procedure. This allows attorneys to benefit from the advice of the consultant during trial preparation without the obligation to disclose the expert to the prosecution. The discussions and shared material between a defense team and the consulting expert are subject to attorney-client privilege. However, if you designate a consulting expert as an expert under Article 39.14(b), the expert’s identity and qualifications are not protected by the work product privilege and the State may comment on your failure to call this witness to testify at trial. Disclosure of the name and contact information of the expert is required. Id., Pope v. State, supra. Consulting experts can be hired and used throughout your trial preparation and during each phase of the trial to counter the evidence that the state will bring. Rather than taking your time to learn the science involved with a spiral fracture in an infant, call your own child abuse expert to review the material from the hospital. You are not likely an expert in this area and the 6th Amendment requires you to use the tools necessary to properly do your job to confront a witness on the other side. Allow the expert to teach you what is necessary for a staunch defense. You can develop questioning for the physician (or other expert) the state is sure to bring to court in this type of case with the assistance of your expert. Your expert will help you assess the facts and data underlying the state’s expert opinions. You can even learn which questions to ask and which to avoid strengthening your defense with assistance from your expert. Kick Returns- Using Testifying Experts to Secure the Best Field Position for Your Defense If there is a chance you might call an expert whom you have consulted as a witness at trial and the opposing side has requested designation of any potential experts, you must designate that person as a testifying expert. If you have designated a person as a potential testifying expert, you must be willing to divulge the experts contact information to the state. Pope v State, supra.

Kick return specialists often stand alone in the open field. Everyone knows who they are, like a designated expert. There is no surprise that this player wants to run the ball back as far as possible. Similarly, the state will expect something from this expert on your team. Help arm your expert with all the relevant documents and information surrounding your defensive strategy so that your expert can return the kick for a touchdown! Show your physician expert the medical records. Give the weapons expert the forensic lab results provided by the state. Tell your expert what the state is alleging. Let the expert formulate a theory and then ask questions. Don’t be afraid to ask questions to fully grasp the theory behind the science. If you are not sure what to ask, get the expert to guide you in what to ask and why. Again, the 6th Amendment requires you to arm yourself with the proper tools and questions strategy to confront the witnesses for your client. Use your experts to strategically ask all the right questions. Draft Day- Writing the Perfect Motion to Get Court Funds for an Expert "Football kickers are like taxi cabs," NFL Legend Buddy Ryan once said, "You can always go out and hire another one." Acquire your specialists (experts) by drafting an Ake motion! (See attached.) If the first expert you interview does not have the answers you are seeking, look for another to work on your case with you. Ask other attorneys who they have used in similar situations. Check with the TCDLA or other local criminal defense bar for advice on experts. Search for experts on Google. There are professionals in many fields who love the opportunity to work on cases. You can always go out and hire another expert to work on your case with you. Even if your client does not have the money to hire an expert, your client has a due process right to state-funded expert assistance. Draft an ex-parte Ake motion and approach the judge. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). If the state has an expert, you need one on your side to counter the opinion, consult, and possibly testify to protect your defensive

strategy. The Ake motion is filed ex-parte and sealed so that the state cannot see who your expert is at this point. You are protecting your field position and establishing your defense. Your appointed expert should be independent of the state. Think of a kicking team with no one on the other side of the ball. Your expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the state’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996), citing DeFreece v. State, 848 S.W.2d 150 (1993). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.” You get to have your players opposing those of the state to make the trial fair. Training- Working With the Expert to Craft Proper Questions for Trial After the court grants your Ake motion and gives you unlimited funds to use to hire your expert (clearly this is a joke and you should be laughing out loud), send an engagement letter to your expert. It is important to consult with an expert prior to filing the Ake motion. Know what the expert charges so that you can request the proper funding from the court. Ask the expert how much time is necessary for the initial review of the case. Show the court that you are prepared and ready to provide effective assistance of counsel by preparing your case with an expert. Then, after the court grants limited funding (this is the expected result of the Ake motion), provide your expert with all the documents and evidence that you want him/her to review. This sets the expectations and guidelines for your expert and establishes exactly what you expect him/her to do. Ask your expert to notify you promptly if the expenses are going over what is approved by the court. You may ask the court for additional funds in a motion for additional funds in a subsequent sealed, exparte motion. However, set time and money expectations with your expert early in the game so that you get what you need for your defense.

Keep in mind there may be things you don’t want your expert to do as well. Limit testing by your expert that may be harmful to your defense in case your expert has to testify later. Remind your expert that all information that you provide is confidential and privileged. Practice! Practice! Practice! Keep Working With Your Expert Throughout the Case TRE 705 allows an expert to state an opinion without giving the underlying facts or data for the opinion. However, the state may inquire about the underlying facts or data on cross examination of your expert. Make sure your expert is prepared for all that may happen in the trial. Discuss the potential harm from certain testing or information that could come out in the trial. Ask your expert questions about additional questioning and testing of your client to avoid any potential harm it may cause during trial. Before an expert states an opinion or discloses the underlying facts or data, TRE 705 allows a hearing, outside the presence of the jury, to examine the adverse expert about the underlying facts or data. You should request this hearing before the trial, if possible, to test the admissibility of the state’s expert’s opinion. The purpose of the hearing, which you should make clear on the record, is to obtain and explore everything the expert used to form his/her opinion. You want to challenge the reliability and the relevance of the expert’s testimony. You may also request additional discovery based on the hearing. Ask for everything the state’s expert used to prepare for the hearing so that you may review with your expert before the trial.

Review Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) to assist with your preparation for the hearing. Block That Kick! Use Your Expert to Challenge the State’s Expert Information

You are expected to do research on the experts that the state intends to use. Immediately request notice of the state’s experts. Article 39.14(b) of the Texas Code of Criminal Procedure provides that if you request notice no later than 30 days before trial, the party receiving the request must provide the information in writing. The information must be provided 20 days before the trial begins. The state’s file is another source of valuable scouting information.

You may find

information for doctors who examined a complaining witness, a medical examiner who performed the autopsy, even the police officer who conducted the field sobriety tests. These are all potential state expert witnesses who should be contemplated as such. Discuss any of these materials with your expert as well. Pick up that state file and run it all the way back for a touchdown! Block the state’s attempt to persuade the jury with their expert. See if your expert knows the state expert. Review the curriculum vitae of the state’s expert. Conduct a background check on the state’s expert. Find information on other cases the state’s expert has testified in in the past. Has the state’s expert ever been disqualified as an expert in any court? TRE 702 provides that 3 conditions must be satisfied before expert testimony is admitted: 1. The witness qualifies as an expert by reason of his or her knowledge, skill, education, training, or experience; 2. The subject matter of the testimony is an appropriate one for expert testimony; and 3. Admitting the expert testimony will assist the jury in deciding the case. Malone v. State, 163 S.W.3d 785 (Tex. App. – Texarkana 2005, pet. ref’d.). In your hearing, cover all the topics in this checklist from Gross, Michael C. (June 25, 2021) Expert Witnesses. San Antonio, Texas: 34th Annual Rusty Duncan Advanced Criminal Law Course, Texas Criminal Defense Lawyers Association:

1. The expert’s qualifications; 2. The validity of the underlying scientific theory used by the expert; 3. The technique used by the expert to apply the theory; 4. How the expert applied the technique; 5. The legitimacy of the field of expertise; 6. Whether the subject matter of the expert’s testimony is within the scope of that field; and 7. Whether the expert’s testimony properly utilizes the principles involved in the field. Maintain your edge and your field position and have your expert ready to counter all evidence the state will introduce by using these hearings as tools. KICKOFF Who is on the opposing team? We expect to see experts in the following fields: AV and Forensics Accident Reconstruction Arson and Fire Investigation Cell Phone Forensics Chemists Child Abuse Experts Classification Experts Computer Forensics Corruption Experts Crime Scene Reconstruction Deaf Defendants DNA Experts Domestic Violence Drug Trafficking Electronic Surveillance Entomology Eyewitness Identification False Confessions Fingerprints Firearms, Toolmarks, and Ballistics Forensic Dentists

Forensic Document Examiners Forensic Neurobiologists Forensic Pathologists Gang Experts Hair, Fiber, Trace Evidence Experts Intellectual Disability Intoxilyzer 5000 Investigators Jury Selection Experts Medicine General Practice Experts Mental Health Professionals Mitigation Investigators Neurobiologists Parole/Probation Experts Pathologists- general Pathologist- forensic Polygraph Examiners Primary Care Physician

Profiler Psychiatric Clinical Nurse Psychiatrist- forensic Psychiatrist- general Psycho-Sexual Disorder Psychologist- forensic Psychopharmacologist Restorative Justice Risk Assessment Sentencing Advocates Sex Offender Experts Standardized Field Sobriety Testing- including Horizontal Gaze Nystagmus Toxicologist Alcohol Only Undercover Tactics Use of Force

This is a non-exhaustive list of experts listed on the TCDLA website, www.TCDLA.com in the members only section. Using Special Teams to Win the Game Getting to Not Guilty With Your Expert Expert witnesses are the something extra that helps you prepare your case for trial. The consulting expert can help educate a savvy attorney and arm him/her with all the right questions for a state’s expert. An expert can also testify to make the jury question a state’s expert and the evidence presented. A defendant does not need wealth to be able to prepare with an expert, as a smart defense attorney will draft and present a motion for the court to appoint an expert to preserve the client’s due process rights in a case. Score extra points with your jury and prevent the state from scoring by hiring an expert witness today.

CAUSE NO. 2021-1234 STATE OF TEXAS

§ § § § §

v. JOHN DOE

IN THE DISTRICT COURT 379TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

SEALED, EX PARTE MOTION FOR APPOINTMENT OF EXPERT NOTICE TO CLERK OF COURT: This motion is to be considered EX PARTE and is filed for purposes of the record. This motion is required to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT. TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW ___________________, the Defendant in the above styled and numbered cause, and moves the court to appoint an expert to assist his/her counsel in this case and for cause would show the court as follows: I. The Defendant is charged by information/indictment with the offense of _____________, a __________ degree felony.

The defendant is currently indigent, and unable to pay for the

expenses needed for an appropriate defense. II. The court has appointed/retained the undersigned counsel to represent the Defendant in this case. The Defendant also requests that the court appoint XXXExpertNameXXX of the XXXCompanyNameXXX in this case and to assist the defendant in technology based investigation including cell tower analysis, mobile forensics (logical and physical acquisitions), computer forensics (desktop, laptop, and servers), including review of records, analysis of data,

statement comparison, and expert testimony. XXXExpertNameXXX is a licensed and insured as a digital forensic investigator by the Texas Department of Public Safety Regulatory Division. XXXExpertNameXXX has the experience, training, and infrastructure to accomplish the technological investigation required by the defendant in the above-entitled matter including thousands of hours in cybercrime investigations and digital forensics. XXXExpertNameXXX has testified as an expert in civil, family, and criminal courts throughout the State of Texas and in numerous other states throughout the United States as well as in United States Federal Courts. His Indigent Defense Rate is $XXXX per hour, and his expected time requirement to analyze the record and meet with parties in question is XXXXXXXXEstimate of HoursXXXX at this time with a total expected cost of XXXX. Tex. Code Crim Proc. art. 26.05; Ake v. Oklahoma, 470 U.S. 68 (1985); Tex. Const. art. I, § 10, 19.

WHEREFORE, the Defendant prays that this court appoint an expert and authorize the payment of reasonable fees and expenses for expert investigation relating to his case.

Respectfully Submitted, ______________________________ Attorney Name State Bar Number Address City, State, Zip Phone Fax Attorney for Defendant ***

CAUSE NO. 2021-1234 STATE OF TEXAS

§ § § § §

v. JOHN DOE

IN THE DISTRICT COURT 379TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

ORDER APPOINTING EXPERT Came on to be considered the Motion for Appointment of Expert for the Defendant, ***, in this case. Upon consideration of the motion and argument of counsel, it is hereby GRANTED. The court hereby appoints XXXXXXXXX Name & Company of Expert to be AppointedXXXX to provide expert services to Defendant and to his/her counsel in order to assist the Defendant's counsel in representing the Defendant in this case. The court hereby authorizes the payment of reasonable investigative fees and expenses upon submission of a statement of the fees and expenses incurred, not to exceed $ written approval. IT IS SO ORDERED. SIGNED AND ENTERED on __________________________, 20___. ____________________________________ JUDGE PRESIDING XXXX District Court of XXXXX County, Texas

without prior

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation November 11, 2021 La Posada Hotel 1000 Zaragoza St Laredo, TX 78040

Topic: Rules of the Game/Penalties | Client Relationships & Communications

Speaker:

Carol Camp

1201 Franklin St. Floor 13 Houston, TX 77002 (713) 274-6967 phone carol.camp@pdo.hctx.net

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

ARGUMENT UNDER GROUND ONE Trial counsel’s concession of guilt during closing argument was made without Mr. Brown’s prior knowledge or consent, in violation of his Sixth and Fourteenth Amendment personal right to determine a defense. A.

The right to determine a defense is personal to the accused. The Sixth Amendment envisions trial counsel’s role as providing assistance to the accused.

In Faretta v. California, the Supreme Court of the United States held that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.” Faretta v. California, 422 U.S. 806, 817 (1975). The Court determined that the right of an accused to represent herself was deeply rooted in the Sixth Amendment as well as in English and colonial jurisprudence. Id. at 818. The Court emphasized that “[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Id. at 819. This personal right to determine one’s own defense is “necessarily implied” in the structure of the Sixth Amendment. Id. After all, “it is [the accused] who suffers the consequences if the defense fails.” Id. at 819-20. Counsel’s role is to “supplement” the accused’s right to determine his own defense, “and an expert, however expert, is still an assistant.” Faretta, 422 U.S. at 820. Forcing a public defender to represent an unwilling accused, therefore, is antithetical “and the right to make a defense is stripped of [its] personal character” when counsel is permitted to assert his will in this instance. Id. As the Court acknowledged, “An

unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” Id. at 821. In sum: Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant and not his lawyer, or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Id. at 834. Trial counsel’s decision to concede Mr. Brown’s guilt to the jury was not a defense to which Mr. Brown acquiesced. B.

The decision whether to admit guilt or to assert a defense at trial is a matter of client autonomy that belongs exclusively to the accused and cannot be overruled by trial counsel over the accused’s objection.

In McCoy v. Louisiana, the U.S. Supreme Court relied extensively on Faretta’s analysis to hold that although an accused is constitutionally entitled to the assistance of counsel, the Sixth Amendment does not require her to sacrifice her personal right to make important decisions, including whether to plead guilty, waive a jury trial, testify in her own defense, or to appeal. McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018), citing Jones v. Barnes, 463 U.S. 745, 751 (1983). Specifically, the Court emphasized that “[a]utonomy to decide that the objective of the defense is assert innocence” belongs to

the accused and that this decision “[is a] choice about what the client’s objectives in fact are.” McCoy, 138 S.Ct. at 1508 (citations omitted). “When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal act, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at 1509 (emphasis in original); see also TEX. DISCIPLINARY R. PROF. CONDUCT 1.02(a)(3), which states that “a lawyer shall abide by a client’s decisions…[i]n a criminal case, after consultation with the lawyer, as to a plea to be entered…” The Court further emphasized that “[b]ecause a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence,” and specifically declined to apply either Strickland v. Washington’s deficient performance and prejudice standard or U.S. v. Cronic’s abandonment of counsel at a critical stage of the proceedings framework to decide McCoy’s concession of guilt claim. Id. at 1510-11. In the Court’s view, trial counsel’s override of McCoy’s Sixth Amendment personal right to determine the objective of his defense was a profound violation of client autonomy resulting in structural error that could not be adequately measured by conducting a harmless error analysis. Id. at 1511. C.

Although Mr. Brown’s appellate counsel raised the issue of trial counsel’s concession of guilt without Mr. Brown’s knowledge or consent on direct appeal, she asserted it as an ineffective assistance of counsel claim rather than as a violation of Mr. Brown’s Sixth and Fourteenth Amendment personal right to make a defense.

Appellate counsel raised the issue of trial counsel’s concession of guilt as ineffective assistance of counsel rather than as a client autonomy claim. The First Court of Appeals 3

analyzed the issue under U.S. v. Cronic and in passing under Strickland v. Washington. U.S. v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, 466 U.S. 668 (1984). The Court’s analysis was based on the language in Cronic stating that the adversarial process is made presumptively unreliable when trial counsel fails to subject the prosecutor’s case to meaningful adversarial testing. Brown v. State, 866 S.W.2d 675, 681 (Tex. App.— Houston [1st Dist.] 1993), pet. ref’d (Tex. Crim. App. 1994). Under this rubric, the Court concluded that “the argument as a whole did not fail to subject the prosecution’s case to meaningful adversarial testing.” Id. In its cursory Strickland analysis, the Court held that “the appellant has not shown that the result of the proceeding would have been different.” Id. The Court rejected Brown’s argument that it should consider the fact that his first trial ended in a mistrial as evidence of prejudice in the second trial. Id. The U.S. Supreme Court decided Cronic and Strickland on the same day in 1984. Although Cronic analyzed attorney error as structural rather than requiring a prejudice analysis as Strickland mandated, neither decision specifically addressed the issue of client autonomy. In Cronic, the Court noted that “the core purpose of the counsel guarantee was to assure `Assistance’ at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. If no actual “Assistance” for the accused’s “defence” is provided, then the constitutional guarantee has been violated.” Cronic, 466 U.S. at 654 (citation omitted). The Court further observed that “[t]he right to the effective assistance of counsel is thus the right of the 4

accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” Id. at 65657. In Mr. Brown’s direct appeal, the First Court of Appeals cited two cases in support of its holding that trial counsel’s concession of guilt did not constitute ineffective assistance of counsel. In Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 932 (1993), the Court of Criminal Appeals emphasized that there was overwhelming evidence of the defendant’s guilt and therefore, defense counsel’s decision to concede the defendant’s guilt in the hope that the jury would convict the defendant of a lesser offense was sound trial strategy. Id. at 118. Similarly, in Jordan v. State, 859 S.W.2d 418, 422 (Tex. App.—Houston [1st Dist.], 1993, no pet.), a majority of the First Court of Appeals held that defense counsel’s “less than fiery” closing argument in which counsel stated that the inconsistencies in the case were not “sufficient enough to give me rise to tell you, well, I think that’s sufficient to find this man not guilty.” Id. at 422. The Court approved of defense counsel’s trial strategy in light of the “overwhelming evidence of appellant’s guilt.” Id. Justice O’Connor dissented in Jordan. In her dissent, Justice O’Connor argued that, pursuant to Cronic, the adversarial process that the Sixth Amendment protects 5

requires counsel to act as his client’s advocate. Id. at 422. Justice O’Connor implied that trial counsel violated his client’s autonomy by conceding guilt when she noted that “[a] more direct way to refute the majority’s statement that defense counsel’s argument was not “abdication of the adversarial system” is to recall that the appellant pled not guilty. If the appellant wanted the jury to know that he was guilty, he would have pled guilty. The appellant had a right to a fair trial. He did not get one because his lawyer told the jury to convict him.” Id. at 423. Justice O’Connor’s rationale in Jordan echoed Mr. Brown’s words to the trial court at the conclusion of his trial when he said “I stood up here and stated that I was not guilty. I meant that.” See Transcript of September 2, 1992 hearing, Exhibit , at 21. Although Justice O’Connor was certainly on the right track when she emphasized that Mr. Jordan’s trial counsel had no right to override his decision to maintain his innocence, she framed the issue in terms of ineffective assistance of counsel rather than as a client autonomy claim. Id. Nor did Justice O’Connor cite Faretta’s analysis of Mr. Jordan’s Sixth Amendment personal right to make a defense. As will be discussed infra, the Texas Court of Criminal Appeals recognized that McCoy’s articulation of Sixth Amendment client autonomy is deeply rooted in Faretta’s holding that it is the accused, not trial counsel, who must decide how best to make her defense and who ultimately must live with the consequences of her decision. D.

The Texas Court of Criminal Appeals has determined that McCoy v. Louisiana does not constitute a new legal basis for a successive habeas petition and that the decision whether to concede guilt during trial 6

belongs exclusively to the accused. In Ex parte Barbee, a majority of the Texas Court of Criminal Appeals held that “McCoy applied longstanding jurisprudence related to defendant autonomy and structural error”. Ex parte Barbee, 616 S.W.3d 836, 842 (Tex. Crim. App. 2021). In Barbee, the Court rejected Barbee’s assertion that McCoy provided a new legal basis for his subsequent habeas petition. The Court pointed out that “McCoy derived the defendant’s right to assert innocence against counsel’s advice from the right to decide whether to plead guilty and from his right to reject the assistance of counsel.” Id. at 842. Although “[t]rial management is the attorney’s province…some decisions belong to the defendant,” including the decision whether or not to plead guilty and waive a jury trial. Id. (citations omitted). In support of this assertion, the Court cited both Faretta v. California, 422 U.S. 806 (1975) and Jones v. Barnes, 463 U.S. 745 (1983). Id. The Barbee majority acknowledged that “[a]utonomy to decide that the objective of the defense is to assert innocence” is reserved for the defendant. Id. at 842. Despite the McCoy majority’s statement that “[b]ecause a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-assistance-of counsel jurisprudence to McCoy’s claim”, the Barbee majority then confused the issue by engaging in an extensive discussion of U.S. Supreme Court ineffective assistance of counsel jurisprudence under U.S. v. Cronic, Strickland v. Washington, and Florida v. Nixon. Id.; McCoy v. Louisiana, 138 S.Ct. at 1510-11; U.S. v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, 466 U.S. 668 (1984); Florida v. Nixon, 543 U.S. 175 (2004). Ultimately, the 7

Barbee majority concluded that the legal basis for Barbee’s claim that trial counsel violated his Sixth Amendment right to determine the objective of his defense could have been fashioned from the “familiar legal principles” pertaining to the division of labor between attorney and client (Jones v. Barnes), an attorney’s duty to consult with his client about important matters (Florida v. Nixon), the client’s Sixth Amendment right “to make fundamental decisions about his own defense with the assistance of counsel” (Faretta v. California), and structural error (U.S. v. Gonzalez-Lopez); Id. at 844. Justice Walker’s concurring opinion in Barbee distinguished ineffective assistance of counsel claims brought pursuant to Cronic and client autonomy claims asserted under McCoy and emphasized that although the claims are legally dissimilar because Cronic claims are not client autonomy claims, both require a structural error analysis: Ineffective assistance of counsel under Cronic is structural because, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, the adversarial process itself becomes presumptively unreliable. Conversely, McCoy error is structural for at least two reasons identified by the Supreme Court in McCoy: (1) to protect the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty”; and (2) the effects of the error are too hard to measure.” “[C]ounsel’s admission of a client’s guilt over the client’s express objection…blocks the defendant’s right to make fundamental choices about his own defense. And the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer’s concession of his client’s guilt.” The reason for protections provided in a Cronic claim are very different from the reasons provided in a McCoy claim. Furthermore, a Cronic claim is very different from a McCoy claim because Cronic is an ineffective assistance of counsel claim and McCoy is an autonomy claim. The Cronic opinion makes no mention of autonomy, and McCoy makes no mention of ineffective assistance of counsel except to say it does not apply. 8

Id. at 851-52 (Walker, J., concurring)(internal citations omitted). Despite his disagreement with the majority about the kind of error that the U.S. Supreme Court recognized in McCoy and whether Barbee could have fashioned his client autonomy claim by factually distinguishing Florida v. Nixon, Justice Walker concurred because Barbee “fail[ed] to set out a prima facie case that trial counsel usurped his authority to set the goals of his defense.” Barbee, 616 S.W.3d 846. Specifically, although Barbee told his trial counsel he was innocent, the trial record did “not show that he told counsel to pursue a defense of asserting innocence that counsel then overrode.” Id. Without proof that trial counsel overrode his stated defense objective of maintaining his innocence, Barbee could not overcome TEX. CODE CRIM. P. ART. 11.071 §5(a)’s subsequent writ bar. E.

Although Mr. Brown advised trial counsel he wanted to maintain his innocence, trial counsel conceded his guilt without Mr. Brown’s prior knowledge or consent. This violation of Mr. Brown’s Sixth and Fourteenth Amendment constitutional right to make a defense is structural error for which no showing of prejudice is required.

Mr. Brown’s stated defense objective was to maintain his innocence. Before trial, he repeatedly told his trial counsel that he was innocent and that he wanted the jury to know that he did not commit the crime of which he stood accused. According to Mr. Brown: Before trial, I explained to Mr. Reynolds that I did not commit this offense. Moreover, I never agreed to any strategy that would have conceded my guilt in any way. I made it clear to Mr. Reynolds that I expected him to argue my innocence of all charges. That is, I never agreed to any strategy which involved 9

conceding my guilt of a lesser charge or any strategy that was inconsistent with the truth, which was that I was not guilty of any misconduct on the date of the offense. The only defense I expected Mr. Reynolds to assert was that I was innocent of this offense. I clearly communicated that to him before trial. Unsworn Declaration of Tracy Brown Under Texas Civil Practice and Remedies Code Sec. 132.001, Exhibit

, at 1.

When trial counsel Fred Reynolds conceded Mr. Brown’s guilt during closing argument by referring to Mr. Brown as a “dope user” and a “dope head,” Mr. Brown “was blindsided by this argument because I was not guilty of any offense, had conveyed that to [Mr.] Reynolds, and had made it clear that my innocence of any crime was the only defense I expected to be asserted at trial.” Id. at 2. Unsure of what to do after hearing Mr. Reynolds’ shocking argument, Mr. Brown “did not think I was allowed to disrupt the proceedings by standing up and saying anything or that I was permitted to stand up and object to my own lawyer’s argument.” Id. Mr. Brown worried “about how I would look to the jury if I did that” and “was also concerned that it would upset the judge if I disrupted proceedings.” Id. As soon as the jurors retired to the jury room to deliberate, Mr. Brown informed the trial judge that he “was objecting to the closing argument that had just been made by Reynolds” because he “had never admitted any guilt. I told the trial judge that by pleading not guilty, I meant exactly that, that I was not guilty. I never authorized Reynolds to concede my guilt of any charge.” Id.

By objecting to trial counsel’s concession of guilt at the first available opportunity, Mr. Brown preserved his Sixth and Fourteenth Amendment claim that trial counsel violated his constitutional right to determine the objective of his defense. The timeframe within which Mr. Brown voiced his objection to his trial counsel’s concession was endorsed in Harrison v. State, 595 S.W.3d 879 (Tex. App.—Houston [14th]), pet. ref’d (Tex. Crim. App. 2020). In Harrison, a child daycare center operator was charged with injury to a child by omission and tampering with evidence. The goal of both Harrison and her defense counsel was to avoid trial by entering a guilty plea (to prevent 6 hours of client’s statements from being admitted into evidence) and to ask the trial judge to grant a deferred adjudication. Id. at 882. After Harrison entered her no contest plea to injury to a child by omission and guilty plea to tampering with evidence, one of her attorneys spoke with the judge in chambers to inquire if he would like to see case law supporting the defense’s position that Harrison was eligible for deferred adjudication. The trial judge then commented, “A deferred on an injury to a child case where there’s a dead baby? I don’t think so.” Id. After consulting with co-counsel, trial counsel decided not to tell Harrison about the judge’s comment. Id. The judge sentenced Harrison to the maximum punishment of 20 years for injury to a child and 2 years for tampering with evidence. Id. at 881. After sentencing, Harrison retained new counsel and filed a motion for new trial two days after learning about the trial judge’s comment. Id. at 882, 884. The trial judge recused himself. Id. at 882. Although the trial judge, trial counsel and the court 11

coordinator all confirmed that the trial judge made the comment, and Ms. Harrison testified that the entire defense objective was to enter a plea in the hope of being granted a deferred adjudication, the presiding judge denied Harrison’s motion for a new trial because she had no right to withdraw her plea and she failed to show that a jury would have given her a more lenient punishment under Strickland. Id. at 883. The First Court of Appeals concluded that Harrison preserved error by claiming in her affidavit to her motion for new trial that she would have wanted to withdraw her plea and go to trial if her trial attorneys had told her about the trial judge’s comment. Id. at 885. The appellate court noted that “She objected at her first opportunity after learning about the trial judge’s comment.” Id. Like Harrison, Mr. Brown’s trial attorney sandbagged him, and Mr. Brown objected to his attorney’s concession of guilt as soon as he possibly could. The appellate court further determined that “In accordance with McCoy, the decision not to tell appellant about the judge’s statement was not a strategic choice. That decision deprived appellant of the right to ask to change her plea, ask for a jury trial, and maintain her innocence.” Id. at 886. Similarly, in Mr. Brown’s case, trial counsel’s decision to overrule Mr. Brown’s articulated defense objective to maintain his innocence at trial deprived Mr. Brown of the presumption of innocence and effectively changed his plea from not guilty to guilty without his prior knowledge or consent. Trial counsel’s concession of guilt constituted structural error, for which Mr. Brown need not show prejudice. As Justice Walker pointed out in his concurring 12

opinion in Ex parte Barbee, trial counsel’s concession of Mr. Brown’s guilt is structural error because it failed to respect “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty” and also because “the effects of the error are too hard to measure.” Ex parte Barbee, 616 S.W.3d at 851 (Walker, J., concurring)(citations omitted). And, as the Supreme Court of the United States noted in Faretta v. California, “[u]nless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” Faretta, 422 U.S. at 821. It was not Mr. Brown’s defense to watch helplessly as his trial counsel conceded his guilt without notice and over his stated defense objective to maintain his innocence. As a result, this Court should enter findings recommending that relief be granted.

THE LAW OFFICE OF ADAM KOBS EMPLOYMENT CONTRACT STATE OF TEXAS

§ § COUNTY OF BEXAR §

KNOW ALL MEN BY THESE PRESENTS:

THAT I, John Doe, hereinafter referred to as “Client”, do by these presents employ the Law Office of Adam Kobs, hereinafter referred to as “Law Office”, of San Antonio, Texas to represent me in a certain proceeding described below. The cause number, if known, is: 123456 involving the offense or investigation of DWI, styled State v. John Doe. I hereby expressly authorize the Law Office, to handle this case in any manner deemed by it to be in my best interest. Law Office may withdraw if client refuses to cooperate. In consideration of the legal services rendered and to be rendered by the said Law Office, I hereby agree to pay a fee of $5,000.00 payable as follows: $5,000.00 this 20th day of September, 2021. Special conditions: If a jury trial is necessary, then an additional $2,500.00 will be necessary payable immediately. Note: Trial is deemed to have commenced once the client requests a trial and an announcement of ready is made before the Court. If the balance is not timely paid, Law Office may withdraw. It is understood, however, that the above fee does not include any appeal to the Court of Criminal Appeals at Austin, Texas, the Supreme Court of the United States, any Writ of Habeas Corpus or appeal to any federal court of the United States, nor does the above fee include any expense for preparing a record for any appeal, or any appearance before the Board of Pardons and Paroles, or in an assault case, any protective order application or hearing. It also does not include an expunction of my records if I am eligible for that. If any of these services are required, a reasonable charge will be agreed upon in advance by the parties. It is further understood that the above fee does not include costs incurred to handle my case; I therefore agree to reimburse and pay to the Law Office within 30 days of demand for the following: large volume photocopying charges, long distance charges, computer legal research time, filing fees, court costs and service of process. It is understood and agreed that should the case have to be retried for any reason after it has once been tried or dismissed, an additional fee will be warranted and necessary. It is understood that the above fee does not include any expense for special investigation, expert witnesses, scientific tests, photographs, witness expense, etc. However, no such expenses will be incurred without the Client’s permission. _________ Initial

It is expressly understood and agreed by the parties that NO PROMISES or GUARANTEES as to the outcome of the case have been made. If Client furnishes to Counsel any document or other tangible thing prior to or during Counsel’s representation of Client, at the conclusion of this matter Client must advise and notify Counsel of each item that Client wishes returned. Counsel agrees to return such item, provided Counsel still possesses the item. It is Client’s obligation to notify counsel which, if any of the items that Client wants returned. In the event that Client fails to notify Counsel to return any item, Counsel may dispose of such items in accordance with Counsel’s policy concerning the disposal of Client files, in effect at that time. Client hereby specifically authorizes Counsel to destroy, at its option, Client’s file at any time after three years of the conclusion of Client’s case. Conclusion of Client’s case occurs when Counsel’s representation of Client is ceased. Law Office does not regularly check its E-Mail. I hereby certify that all attorney’s fees paid the Law Office are from legitimate sources and not the proceeds of illegal activity. I hereby agree that I have read and understand the above. EXECUTED on this the 20th day of September, 2021.

__________________________ John Doe

__________________________ Adam Kobs Attorney at Law

Notice to Clients The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar’s Office of General Counsel will provide you with information about how to file a complaint. Please call 1.800.932.1900 toll-free for more information.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-65,137-05

EX PARTE CLINTON LEE YOUNG, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. CR-27181-E IN THE 385TH JUDICIAL DISTRICT COURT MIDLAND COUNTY Per curiam. OPINION This is a subsequent application for a writ of habeas corpus in a capital case filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. 1 Applicant was convicted of capital murder and sentenced to death in April 2003. We affirmed his conviction and sentence on direct appeal. Young v. State, No. AP74,643 (Tex. Crim. App. Sept. 28, 2005) (not designated for publication).

Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.

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In March 2005, Applicant filed his initial postconviction application for a writ of habeas corpus (our -01) in the trial court, raising fourteen claims. In January, March, and June 2006, Applicant filed pleadings that we determined to be his first subsequent writ application (our -02), which raised nine additional claims. This Court denied relief on Applicant’s initial postconviction application for writ of habeas corpus and dismissed his first subsequent application as an abuse of the writ. Ex parte Young, Nos. WR-65,137-01 and WR-65,137-02 (Tex. Crim App. Dec. 20, 2006) (not designated for publication). Applicant filed his second subsequent habeas application (our -03), in which he raised four claims, in the trial court in March 2009. This Court dismissed two of the claims as procedurally barred but found that two claims met the requirements of Article 11.071 § 5, and we remanded those claims to the trial court. Ex parte Young, No. WR-65,137-03 (Tex. Crim. App. June 3, 2009) (not designated for publication). During the remand, Applicant waived one of the remanded claims. When the case returned to this Court, we denied relief on the remaining remanded claim and dismissed the waived claim. Ex parte Young, No. WR-65,137-03 (Tex. Crim. App. June 20, 2012) (not designated for publication). Applicant filed his third subsequent habeas application (our -04) in the trial court on October 2, 2017, raising eight claims. We found that Applicant’s first claim, in which he contends that the State unknowingly used false or misleading testimony at trial, met the requirements of Article 11.071 § 5, and we remanded that claim to the trial court for consideration. Ex parte Young, No. WR-65,137-04 (Tex. Crim. App. Oct. 18, 2017) (not

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designated for publication). While the case was on remand, Applicant filed his fourth subsequent habeas application (our -05, which is the subject of this opinion) in the trial court on August 14, 2020. In the application, Applicant presents three claims based on newly discovered information that one of the prosecutors representing the State in Applicant’s capital murder case was also employed as a “judicial clerk” for the trial judge during Applicant’s trial and initial postconviction proceedings. We concluded that Applicant’s claims met the requirements of Article 11.071 § 5, and we remanded all three claims to the trial court for consideration. Ex parte Young, Nos. WR-65,137-04 and WR-65,137-05 (Tex. Crim. App. Dec. 16, 2020) (not designated for publication). RELEVANT FACTS The trial court conducted a one-day evidentiary hearing via Zoom. Four witnesses testified remotely: the current Midland County District Attorney, the chief appellate prosecutor, the County Attorney for Midland County, and one of Applicant’s appointed trial attorneys. Forty-three exhibits were admitted at the writ hearing; most were stipulated to by the parties, all were admitted without objection. The judge who presided over Applicant’s capital murder trial, Judge John Hyde, passed away in January 2012, and thus was not available to testify. Further, the record reflects that the prosecutor who was alleged to have been paid as Judge Hyde’s judicial clerk, Weldon Ralph Petty, refused to appear to testify at the writ hearing, first expressing health concerns related to possible COVID-19 exposure and later invoking his Fifth Amendment privilege against

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self-incrimination. The habeas judge found that Petty was “unavailable to testify as a witness” due to his Fifth Amendment invocation. The evidence admitted at the writ hearing demonstrates that Petty began working for the Midland County District Attorney’s Office as a part-time prosecutor in 2001. He became a full-time prosecutor in 2002 and worked as a full-time prosecutor for the Midland County DA’s Office until his retirement in June 2019. In 2002, when Petty began to work full-time at the DA’s office, Judge Hyde sought an opinion from Russell Malm, the County Attorney for Midland County, about whether Petty could receive pay for doing work for the district judges on habeas corpus cases in addition to his regular salary as an assistant district attorney. The concern was the constitutional prohibition against employees receiving additional compensation for work for which they were already being paid. Because Petty’s work for the judges was done on his own time, and not as part of his duties at the DA’s office, Malm concluded that Petty’s work for the judges was completely separate from his job as an assistant district attorney, and he could be paid by the county for that work. Malm made it clear at the writ hearing that his opinion was only about payment, and not about whether the dual employment would create an ethical conflict of interest. The evidence also establishes that from 2001 through 2014 and again in 2017 and 2018, Petty was paid by the Midland County district court judges—including Judge Hyde—for “legal work” performed in connection with postconviction writs of habeas corpus. When a habeas application was filed, the judge of the convicting court assigned

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the writ to Petty. He then reviewed the file, performed any necessary research, and submitted a recommendation and a proposed order with findings of facts and conclusions of law to the assigning judge. The evidence further shows that the District Attorney who hired Petty as a part-time prosecutor and later a full-time prosecutor, Al Schorre, knew of Petty’s employment by the district court judges, as did the First Assistant District Attorney, Teresa Clingman, who became District Attorney after Schorre. The evidence indicates, however, that the other prosecutors in the office who were involved in Applicant’s trial and subsequent postconviction proceedings were not aware of Petty’s judicial employment. Midland County District Attorney Laura Nodolf, who was elected in 2016, discovered Petty’s judicial employment during the 2019 budget process after Petty’s retirement. She had requested money for an intake attorney and contacted the county treasurer to see if the position had been approved. The treasurer sent Nodolf a report in the form of an Excel spreadsheet with all the departments’ requests and approvals. In the report, Nodolf discovered a line-item payment from the district courts to Petty. Nodolf’s ensuing investigation revealed that Petty had been paid for working on numerous postconviction writs by multiple judges while he was working as a prosecutor for the Midland County DA’s Office. Petty confirmed to Nodolf that he had been getting paid by the district court judges while working as a prosecutor. He maintained that he worked for the judges during off hours at his home, not while he was at the office.

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On discovering Petty’s judicial employment, Nodolf went to Erik Kalenak, the chief appellate prosecutor who assisted Petty with, and later assumed responsibility for, handling Applicant’s postconviction habeas proceedings, to discern if he was aware of Petty’s judicial employment. Kalenak was not and was “shocked” when he learned of it from Nodolf. Nodolf and Kalenak realized that Petty might have been paid by the judges for work on Applicant’s capital murder case, and Kalenak immediately informed Applicant’s habeas attorney of the discovery of Petty’s judicial employment. Kalenak then filed a motion to recuse the Midland County DA’s Office from Applicant’s case, which was granted. The DA’s office then sent letters to each of the defendants for whom Petty had billed the district court judges for work on postconviction writs—some 300 plus defendants—to inform them of the “ethical situation.” The evidence at the writ hearing also establishes that, although Schorre and Clingman were the primary prosecutors in Applicant’s capital murder trial, Petty was actively part of the prosecution team. Petty was “basically the legal advisor to [the] team that was prosecuting the case” and “probably drafted just about every single motion in that case . . . that the prosecution filed.” He also appeared in court multiple times during the trial proceedings to argue particular legal issues. According to exhibits admitted at the writ hearing, during Applicant’s capital murder trial proceedings—specifically, from the period beginning with Applicant’s capital murder indictment on February 7, 2002, through the denial of Applicant’s motion for new trial on June 20, 2003—the district court judges collectively paid Petty $16,700.

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The exhibits further show that Judge Hyde paid Petty $7,500 while he was presiding over Applicant’s capital murder trial proceedings. 2 In addition, the exhibits and testimony establish that Petty represented the State during Applicant’s initial 11.071 and first subsequent writ proceedings before Judge Hyde. The exhibits also show that Judge Hyde paid Petty $1,500 for legal work performed in connection with Applicant’s initial postconviction application for writ of habeas corpus. This combined evidence demonstrates that, in his role as prosecutor, Petty opposed habeas relief at the writ hearings while at the same time, in his role as judicial clerk to Judge Hyde, he drafted the order recommending the denial of Applicant’s initial 11.071 writ application. After the Zoom writ hearing, Applicant submitted proposed findings of fact and conclusions of law to the habeas judge. The State filed a document that contained two sets of the State’s proposed findings of fact and conclusions of law. Both sets conceded Petty’s judicial employment while prosecuting Applicant—and the impropriety of it—but proposed alternative dispositions: version “A” recommended denying habeas relief; version “B” recommended granting habeas relief. After some discussions, the habeas judge adopted Applicant’s proposed findings and conclusions in toto, making no additional findings or conclusions.

According to the evidence in the record before this Court, over the course of Petty’s judicial employment, the district court judges collectively paid Petty at least $132,900. Judge Hyde paid Petty at least $64,100.

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After the case returned to this Court, the parties filed an agreed stipulation and request for judicial notice, which asked this Court to take judicial notice of the Texas Supreme Court’s order accepting Petty’s resignation from the State Bar of Texas in lieu of disciplinary action. In the order, the Texas Supreme Court “deem[ed] the professional misconduct detailed [against Petty] conclusively established for all purposes.” That misconduct included that Petty was employed full-time as an appellate attorney with the Midland County District Attorney’s Office, while Petty was also being paid by the District Judges of Midland County to work on writs in cases to which he was assigned in the District Attorney’s office. These facts establish violations of Texas Disciplinary Rules of Professional Conduct, Rule 1.06(b)(2). See Tex. Disciplinary Rules Prof’l Conduct R. 1.06(b)(2) (providing that, with exceptions not applicable here, “a lawyer shall not represent a person if the representation of that person reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities . . . to a third person or by the lawyer’s or law firm’s own interests.”). ANALYSIS Underlying all three claims in the instant writ application (our -05) is Applicant’s contention that Petty’s judicial employment while simultaneously prosecuting him—and the State’s failure to disclose it—violated his due process rights to an impartial judge and a fair trial. In Claim 1, Applicant alleges that his right to an impartial judge was violated because Judge Hyde was actually biased or, if not, was presumptively biased against him

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due to the judge’s employment of Petty while Petty was representing the State at trial and in the postconviction proceedings before Judge Hyde. See Buntion v. Quarterman, 524 F.3d 664, 672 (5th Cir. 2008). In Claim 2, Applicant contends that his right to a fair trial was violated because Judge Hyde was constitutionally disqualified, statutorily disqualified, and subject to disqualification and recusal under the Rules of Civil Procedure because he employed Petty while Petty represented the State in his court. See T EX. C ONST. art. 5, § 11; Art. 30.01; T EX. R. C IV. P. 18b(a)(1), (b)(1) & (5). In Claim 3, Applicant asserts that the State violated his right to a fair trial because the prosecutorial misconduct pervading Applicant’s case—including Petty’s simultaneous employment for the judge presiding over Applicant’s trial proceedings and the State’s failure to disclose it—was misconduct that “shock[s] the conscience.” See Rochin v. California, 342 U.S. 165, 172 (1952). In its signed order, the habeas court concluded “that Applicant Clinton Young’s structural due process rights were violated” by Judge Hyde’s employment of Petty as a judicial clerk while Petty was prosecuting Applicant for capital murder before Judge Hyde. The habeas judge recommends that relief be granted. Although we agree with the habeas judge’s ultimate conclusion that relief be granted, we decline to adopt the habeas judge’s findings of fact and conclusion of law. We have reviewed the record with respect to Applicant’s claims. The undisputed evidence in the record establishes that an attorney working as a paid judicial clerk for the

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judge presiding over Applicant’s capital murder proceedings simultaneously represented the State against Applicant during his trial and his initial postconviction proceedings before that same judge. At the writ hearing, Assistant District Attorney Kalenak aptly described the problem with Petty’s dual role: “[Y]ou can’t serve two masters in that way. You . . . [can] either be an impartial person that the judges are consulting, or you [can] be . . . an advocate with the District Attorney’s Office. You . . . can’t do both. I mean, that’s like professional responsibility 101.” The record demonstrates that Petty was “serving two masters.” Judge Hyde was one of the “masters,” and he allowed his “servant,” his paid judicial clerk, to represent one of the parties appearing before him in a contested legal matter—namely, Applicant’s capital murder trial. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). Further, “fundamental to the judiciary is the public’s confidence in the impartiality of our judges and the proceedings over which they preside.” United States v. Jordan, 49 F.3d 152, 155 (5th Cir. 1995); see, e.g., Metts v. State, 510 S.W.3d 1, 8 (Tex. Crim. App. 2016) (“Regardless of any actual bias harbored by [the trial court judge], the appearance of impropriety is palpable.”). Almost a century ago, the Supreme Court explained that “[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 532 (1927). The Supreme Court later recognized that “[s]uch a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their

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very best to weigh the scales of justice equally between contending parties.” Murchison, 349 U.S. at 136. “But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’” Id. (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). Judicial and prosecutorial misconduct—in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him—tainted Applicant’s entire proceeding from the outset. As a result, little confidence can be placed in the fairness of the proceedings or the outcome of Applicant’s trial. The taint, the record shows, continued through Applicant’s postconviction proceedings and persisted until the revelation in 2019 of Petty’s judicial employment upon inadvertent discovery by District Attorney Nodolf. The evidence presented in this case supports only one legal conclusion: that Applicant was deprived of his due process rights to a fair trial and an impartial judge. CONCLUSION Based on our review of the record, we grant Applicant’s request for relief, vacate Applicant’s judgment of conviction, and order that Applicant be remanded to the custody of the Sheriff of Midland County to answer the charge set out in the indictment. Delivered: September 22, 2021 Do Not Publish

GAME DAY: PLAYING BY THE RULES In football, one objective is to play a game as penalty-free as possible. To avoid committing unnecessary and potentially devastating penalties, here are the applicable rules you need to keep in mind to enable you and your client to get the ball across the goal line. Here in Texas, the ethical rules to which lawyers must adhere are codified in the Texas Disciplinary Rules of Professional Conduct, Tex. Govt. Code Ann., Title 2, Subtitle G, Appendix A, Article 10, §9. This paper will review the rules that criminal defense attorneys frequently encounter while representing their clients. The Preamble to the disciplinary rules sets forth aspirational standards which lawyers should strive to achieve. Clearly, lawyers are expected to wear several different hats while representing their clients. Not only do lawyers have to represent their clients; they must also act as officers of the legal system, public citizens, and guardians of the law. While representing clients, lawyers must act as negotiators, advocates, advisors, intermediaries, and evaluators. How must a lawyer perform these roles? Paragraph 3 of the Preamble requires lawyers to zealously pursue their clients’ interests “within the bounds of law” while being “competent, prompt and diligent.” Additionally, lawyers must maintain communication with their clients and only disclose information in accordance with the disciplinary rules or applicable law. The Preamble also emphasizes that lawyers “should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” As public citizens, lawyers should strive to provide legal services to those who cannot afford to retain counsel and “to devote professional time and civic influence in their behalf.” Although such service is not required, the Preamble clearly states that “[t]he provision of legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.” Perhaps most importantly, the Preamble reminds us that “[e]ach lawyer’s own conscience is the touchstone”, and that the risk of losing the public’s confidence and respect “is the ultimate sanction.” The practice of law is a “noble profession…[t]his is its greatness and its strength, which permit of no compromise.”

Duties of lawyers to their clients Competency and diligence Rule 1.01. Competent and Diligent Representation (a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. (b) In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule, “neglect” signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients. “Competent” or “Competence” is defined as “possession or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client.” “Reasonable” or “Reasonably” refers to “the conduct of a reasonably prudent and competent lawyer.” To determine whether a particular legal matter is beyond a lawyer’s competence, several factors must be taken into consideration. These include the complexity and specialized nature of the legal matter; the lawyer’s general experience in the particular field; the preparation and study the lawyer will be able to give to the matter; and whether the lawyer can refer the matter to another lawyer or associate with a lawyer who is competent to handle the matter. The comments emphasize that a lawyer can still accept employment in a matter with which she is unfamiliar and that the appropriate level of proficiency required in most matters is that of a general practitioner. If the additional study and preparation a lawyer must do to become competent in a particular field will cause the client to incur undue delay or expense, the client must consent to the lawyer doing what she needs to do to become proficient enough to handle the matter. 2

The comments further emphasize that a lawyer must act with competence, diligence, and dedication to the client’s interests, and advocate zealously for her clients. Procrastination is discouraged because it can potentially destroy a client’s legal position (i.e., missing a statute of limitations.) The final comment to the rule recognizes the importance of technology, and states that “each lawyer should strive to become proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.” Not surprisingly, a lawyer’s competency in the use of technology has increasingly become the subject of ethics opinions. See, e.g., Tex. Comm. on Prof. Ethics, Op. 680 (Sept. 2018)(stating that “a lawyer should remain reasonably aware of changes in technology and the associated risks” and “a lawyer must take reasonable precautions in the adoption and use of cloud-based technology for client document and data storage or the creation of client-specific documents that require client confidential information. These reasonable precautions include: (1) acquiring a general understanding of how the cloud technology works; (2) reviewing the “terms of service” to which the lawyer submits when using a specific cloud-based provider just as the lawyer should do when choosing and supervising other types of service providers; (3) learning what protections already exist within the technology for data security; (4) determining whether additional steps, including but not limited to the encryption of client confidential information, should be taken before submitting that client information to a cloud-based system; (5) remaining alert as to whether a particular cloud-based provider is known to be deficient in its data security measures or is or has been unusually vulnerable to “hacking” of stored information; and (6) training for lawyers and staff regarding appropriate protections and considerations. These precautions do not require lawyers to become experts in technology; however, they do require lawyers to become and remain vigilant about data security issues from the outset of using a particular technology in connection with client confidential information.”) See also Tex. Comm. on Prof. Ethics, Op. 665 (Dec. 2016)(“In the opinion of the Committee, a lawyer’s duty of competence requires that lawyers who use electronic documents understand that metadata is created in the generation of electronic documents, that transmission of electronic documents will include transmission of metadata, that the transmitted metadata may include confidential information, that recipients of the documents can access metadata, and that actions can be taken to prevent or minimize the transmission of metadata. Lawyers therefore have a duty to take reasonable measures to avoid the transmission of confidential information embedded in electronic documents, including the employment of reasonably available technical means to remove such metadata before sending such documents to persons 3

to whom such confidential information is not to be revealed pursuant to the provisions of Rule 1.05. Commonly employed methods for avoiding the disclosure of confidential information in metadata include the use of software to remove or “scrub” metadata from the document before transmission, the conversion of the document into another format that does not preserve the original metadata, and transmission of the document by fax or hard copy.”) Scope of representation Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. (b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. (c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law. (d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud. (e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal or fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action. (f) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct. The comments to Rule 1.02 make it clear that the lawyer and client should ideally work together as a team. While the ultimate objectives of the representation are for the client to decide, the attorney’s job is to “assume responsibility for the means by which the 4

client’s objectives are best achieved.” This gives the lawyer “very broad discretion to determine technical and legal tactics” while considering the cost to the client and being mindful of how third parties might be affected. The rule does not require a lawyer to convey a settlement offer or a potential plea bargain to a client if the proposal would clearly be unacceptable to the client (as determined by the lawyer’s prior communications with the client.) However, a common complaint of clients in post-conviction proceedings is that their attorneys did not communicate with them about potential plea offers, so the better practice may be to convey any and all plea offers to the client. Recently, the Supreme Court of the United States held that an attorney cannot concede a client’s guilt during opening statement over the client’s objection. McCoy v. Louisiana, 138 S.Ct. 1500, 1509 (2018). Specifically, the Court emphasized that “[a]utonomy to decide that the objective of the defense is assert innocence” belongs to the accused and that this decision “[is a] choice about what the client’s objectives in fact are.” McCoy, 138 S.Ct. at 1508 (citations omitted). “When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal act, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at 1509 (emphasis in original.) The McCoy majority considered the issue to be one of client autonomy and relied on Faretta v. California to come to this conclusion. In Faretta, the Supreme Court held that the accused had a right to represent himself and if competent to do so, could not be required to have a public defender represent him. Faretta v. California, 422 U.S. 806, 817 (1975). The Court emphasized that “[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Id. at 819. This personal right to determine one’s own defense is “necessarily implied” in the structure of the Sixth Amendment. Id. After all, “it is [the accused] who suffers the consequences if the defense fails.” Id. at 819-20. Counsel’s role is to “supplement” the accused’s right to determine his own defense, “and an expert, however expert, is still an assistant.” Faretta, 422 U.S. at 820. Forcing a public defender to represent an unwilling accused, therefore, is antithetical “and the right to make a defense is stripped of [its] personal character” when counsel is permitted to assert his will in this instance. Id. As the Court acknowledged, “An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense 5

presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” Id. at 821. In sum: Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant and not his lawyer, or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Id. at 834. A lawyer may limit the scope of representation in a written retainer agreement that states a specific objective. The agreement may exclude specific objectives or means that the parties consider to be imprudent or repugnant. The retainer agreement must comply with the disciplinary rules and cannot require the client to give up terminating the lawyer’s services or the right to settle or continue the litigation, even if the lawyer would handle the matter differently. Unless the representation is terminated in accordance with Rule 1.15, the lawyer should continue to represent the client until all matters undertaken on the client’s behalf have concluded. If the representation is limited in scope, it ends when the matter or matters have been resolved. If the matter was decided against the client, and if the lawyer has not been instructed about pursuing an appeal, the lawyer should advise the client of her right to appeal. A recurring issue we see in writ cases is attorneys failing to advise their criminal clients of their right to pursue an appeal and/or to file a petition for discretionary review in the Texas Court of Criminal Appeals if the client loses her appeal in an intermediate appellate court. Even if a lawyer does not intend to represent her client on appeal in a criminal case, the lawyer must advise her client of her right to file a pro se notice of appeal and file a motion to withdraw. Trial counsel’s obligations to her client “do not magically and automatically terminate at the end of the trial.” Ward v. State, 740 S.W.2d 794, 796 (Tex. Crim. App. 1987). Regardless of whether trial counsel is retained or court-appointed, …trial counsel…has the duty, obligation and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice 6

of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal. The decision to appeal belongs to the client. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988); see also American Bar Association, Criminal Justice Standards for the Defense Function (4th ed. 2017), Standards 49.1(a)-(d); 4-9.2(i)(describing trial counsel’s continuing obligation to protect client’s appellate remedies upon conclusion of trial.) If trial counsel does not withdraw, he “still represents [the client] on appeal.” Ward, 740 S.W.2d at 796 (citation omitted.) [Trial] “counsel may seek the trial court’s permission to withdraw at any time so long as the defendant’s appellate rights are protected, the appellant is given notice of withdrawal, and the trial court’s signed order permitting withdrawal is in the record, and if the defendant is still indigent, substitute counsel is appointed.” Id. at 797 (citation omitted.) In other words, “[trial] counsel can’t be permitted simply to bow out without notice either to court or client and frustrate forever the right of the client to protect his vital interests.” Atilus v. U.S., 406 F.2d 694, 696 (5th Cir. 1969). A lawyer may not knowingly assist a client in committing criminal or fraudulent conduct. She cannot reveal the client’s wrongdoing except as permitted under Rule 1.05. Nor can the lawyer further the client’s unlawful purpose or continue assisting the client upon discovering the client’s misconduct. The lawyer may have to withdraw from the client’s case. The lawyer must use reasonable efforts to dissuade the client from committing a crime or fraud, and if the client has utilized the lawyer’s services to engage in such conduct, the lawyer must use reasonable efforts to persuade the client to take corrective action. Communicating with clients Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. A lawyer must provide her client with enough information about the objectives of the representation to enable the client to participate intelligently in discussions about the 7

objectives and how to accomplish them to the extent that the client is willing and able to engage in discussions of these issues. The lawyer should provide her client with sufficient information to enable a comprehending and responsible adult to make informed decisions. A lawyer may be prevented by a court order or rule from disclosing information to a client. Disclosure of information may be delayed when a lawyer reasonably believes that a client would act imprudently if the information was disclosed immediately. A lawyer must strive to maintain reasonable communication with a client who suffers from diminished capacity and treat the client with attention and respect. In Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697 (Tex. App.—Corpus Christi 2000), no pet., appellant agreed to represent Nancy Hennessy in a child support enforcement proceeding after her former attorney moved to Fort Worth. Appellant met with Hennessy, her husband, and son and Hennessy paid appellant $500 to represent her at the hearing. Hennessy’s ex-husband did not appear at the hearing and could not be located, so the hearing was reset. Appellant represented Hennessy at the rescheduled hearing, but the judge dismissed Hennessy’s case because her pleadings were defective. Although appellant told Hennessy she could appeal, he did not prepare any paperwork and did not maintain contact with Hennessy. Id. at 699. Both the trial and appellate courts held that appellant violated Rules 1.03(a), 1.03(b), and 1.15(d). Appellant accepted money to represent Hennessy, did not amend her defective pleadings, failed to inform her of her options after the judge ruled against her, did not respond to reasonable requests for information, and failed to protect her interests after he stopped representing her. Moreover, appellant never told Hennessy verbally or in writing that he was no longer representing her. Id. at 701-02. Fee agreements Rule 1.04. Fees (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. (b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 8

(3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement describing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. (f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is: (i) in proportion to the professional services performed by each lawyer; or (ii) made between lawyers who assume joint responsibility for the representation; and (2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including: (i) the identity of all lawyers or law firms who will participate in the fee-sharing agreement, and (ii) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and (iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and (3) the aggregate fee does not violate paragraph (a). (g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of a person, or to refer the person to other counsel for such 9

representation, and that results in such an association with or referral to a different law firm or a lawyer in such a different firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation within the meaning of this rule. No attorney shall collect or seek to collect fees or expenses in connection with any such agreement that is not confirmed in that way, except for: (1) the reasonable value of legal services provided to that person; and (2) the reasonable and necessary expenses actually incurred on behalf of that person. (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement agreement, or to a lawyer referral program certified by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code 952.001 et seq., or any amendments or recodifications thereof. A lawyer is subject to discipline for charging an unconscionable or illegal fee. The factors underlying a lawyer’s fee should be set forth in writing. It is sufficient to provide a client with a memorandum or fee schedule setting forth the basis of the fee. Contingent fee agreements must be in writing and are not appropriate in divorce proceedings. Lawyers may divide fees on the basis of the proportion of services each lawyer renders or if each lawyer assumes joint responsibility for representing the client. A client must consent in writing to the terms of a referral or association of lawyers prior to the commencement of the referral or arrangement. Lawyers are encouraged to submit to fee resolution procedures offered by local bar associations. Several local bar associations assist lawyers and clients in resolving fee disputes and there are also regional fee dispute resolution centers that can assist with these issues. A sample fee agreement is attached to this paper. Confidentiality Rule 1.05. Confidentiality of Information (a) “Confidential information” includes both “privileged information” and “unprivileged client information.” “Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles 10

of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm. (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation. (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known. (4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used. (9) To secure legal advice about the lawyer’s compliance with these Rules. (10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation. 11

(2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). Rule 1.05 protects against the unauthorized disclosure of both confidential privileged and unprivileged client information. In criminal cases, attorney-client privilege is defined in Texas Rule of Criminal Evidence 503. Rule 503 and enables a client to refuse to disclose and to prevent any other person “from disclosing confidential communications made to facilitate the rendition of professional legal services to the client.” In criminal cases, a client may prevent a lawyer or a lawyer’s representative “from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.” Individuals who may claim the privilege include a client, her guardian or conservator, her personal representative (if the client is deceased), or a successor, trustee, or representative of a corporation, association, or other entity, even if the entity no longer exists. A client’s lawyer or lawyer’s representative when the communication was made is presumed to have the authority to claim the privilege on the client’s behalf. The attorney-client privilege does not apply if the lawyer’s services were sought to enable anyone to commit or plan to commit what the client should reasonably know is a crime or fraud; to communications pertaining to issues between parties claiming through the same deceased client; to breaches of duty by either a lawyer to a client or a client to a lawyer; to attested documents when a lawyer is the attesting witness; and to communications between joint clients when made to a lawyer in an action between the clients on a matter of common interest.

A lawyer may not use confidential information to the client’s disadvantage, or to the advantage of the lawyer or a third person unless the client consents after consultation. Nor can a lawyer use a former client’s confidential information to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known. A lawyer may reveal confidential information when expressly authorized to do so; when the client has consented after consultation; when the lawyer has reason to believe disclosure is necessary to comply with a court order, the disciplinary rules, or other law; to the extent reasonably necessary to enforce a claim or establish a defense in a dispute between the lawyer and the client; to defend against a civil claim, criminal charge, or disciplinary complaint against the lawyer or her associates by the client or client’s representative; when the lawyer has reason to believe that disclosure is necessary to prevent the client from committing a crime or fraudulent act; when necessary to rectify a client’s criminal or fraudulent act when the lawyer’s services have been utilized in its commission; to obtain legal advice about a lawyer’s compliance with the disciplinary rules; and when the lawyer has reason to believe that the disclosure is needed to prevent the client from committing suicide. Additionally, a lawyer may disclose confidential information to the client, client’s representative, and members, associates, and employees of her law firm, unless the client instructs her not to do so. When the threatened injury due to a client’s decision to commit a crime or fraud is grave, the lawyer’s interest in preventing the harm from occurring may be greater than protecting the client’s confidential information. In this scenario, the lawyer has professional discretion to reveal both privileged and unprivileged information to prevent the commission of the fraudulent or criminal act. Except when death or serious bodily injury is involved, a lawyer is obligated to dissuade the client from committing the criminal or fraudulent act or to persuade the client to take corrective measures. If the lawyer’s services will be used by the client to materially further criminal or fraudulent conduct, the lawyer must withdraw. Loyalty Rule 1.06. Conflict of Interest: General Rule (a) A lawyer shall not represent opposing parties to the same litigation. (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: 13

(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests. (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. (d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules. (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct. If an impermissible conflict of interest exists before undertaking the representation of a client, the lawyer should decline the representation. If the conflict arises after the representation begins, the lawyer must act to eliminate the conflict, and may even have to withdraw from the case. As a general rule, a lawyer may not represent opposing parties in litigation. Parties are opponents when a judgment in favor of one party would directly and unfavorably affect the other party. Additionally, a lawyer is generally prohibited from undertaking representation directly adverse to a client in a substantially related matter unless the client consents after consultation and the lawyer reasonably believes that her representation will be reasonably protective of the client’s interests. A lawyer’s loyalty to her client must also not be blinded by her own interests. If the lawyer cannot consider, recommend, or carry out an appropriate course of action for one client because of her obligations to other clients or her own interests, there is a conflict. A lawyer’s independence and professional judgment must not be compromised. If a disinterested lawyer would conclude that the client should not agree 14

to the representation under the circumstances, the lawyer should not ask the client to agree to the representation or provide the representation based on the client’s consent. A lawyer may be paid by someone other than the client, provided that the client is informed and consents to the arrangement and the lawyer’s duty of loyalty to the client is not compromised. This happens in juvenile cases when the child’s parents retain the lawyer and the juvenile is the client. The lawyer’s duty of loyalty is to the child, not to her parents. On September 22, 2021, the Texas Court of Criminal Appeals granted habeas relief to a capital petitioner, Clinton Lee Young, on his fifth (!) habeas petition because investigation revealed that Weldon Petty, an appellate assistant district attorney, violated Mr. Young’s right to a fair trial by working as a paid law clerk for the judge who presided over Young’s capital murder trial while simultaneously representing the State of Texas against Young during his trial and initial capital habeas proceedings. See Ex parte Young, No. WR-65, 137-05 (Tex. Crim. App. Sept. 22, 2021). The evidence adduced at Young’s writ hearing revealed that Petty was an integral member of the team that prosecuted Young and sent him to death row. Petty wrote most of the motions that were filed on the State’s behalf and appeared in court several times to argue legal issues. Id. at 6. As a paid law clerk in habeas cases for the same judge who presided over Young’s trial and initial habeas proceedings, Petty reviewed filed writs, performed legal research, and submitted a recommendation and proposed order containing findings of fact and conclusions of law to the assigning judge. Id. at 45. During his tenure as a judicial clerk, Petty earned at least $132,000. Id. at 7, n.2. Petty resigned from the state bar in lieu of disciplinary action. The Texas Supreme Court determined that Petty’s dual employment violated Rule 1.06(b)(2). Id. at 8. Safekeeping property Rule 1.14. Safekeeping Property (a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own property. Such funds shall be kept in a separate account, designated as a “trust” or “escrow” account, maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be 15

kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separated by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately. Lawyers are fiduciaries with respect to the property of clients and third parties. Property belonging to clients and third parties must be kept separate from the lawyer’s business and personal property. Client funds must be placed in a trust account and the lawyer must maintain complete records of all client and third party property and funds in the lawyer’s possession. If there is a fee dispute between the lawyer and the client, the lawyer must hold the disputed portion of the funds in trust and promptly return any undisputed funds to the client. In Texas, many local bar associations offer fee dispute resolution services, and there are also regional dispute resolution centers. When a client prepays a fee, that fee belongs to the client until the lawyer until the services have been rendered. Upon notifying the client that the work has been completed, if there is no dispute, the lawyer can then withdraw the fee earned for services rendered from the separate trust account. In Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380 (Tex. App.—Dallas 2003), pet. denied (Tex. 2004), attorney Bellino committed several ethical violations, including violations of Rule 1.14. First, Bellino violated Rule 1.14(a) in one case by depositing settlement funds into his own bank account. Id. at 387. Second, Bellino failed to provide another client with a full accounting of funds he received on the client’s behalf, in violation of Rule 1.14(b). Id. And third, Bellino failed to pay a chiropractor his full fee, despite sending the chiropractor a letter of protection offering to pay the chiropractor his fee from any settlement proceeds received in the case. Although Bellino did pay the chiropractor $2500 of the chiropractor’s $6517 fee, Bellino withheld the balance and 16

demanded that the chiropractor release the rest of his claim. Bellino’s conduct violated Rule 1.14(b) because Bellino failed to promptly deliver funds to a third party. Declining or terminating representation Rule 1.15. Declining or Terminating Representation (a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw, except as stated in paragraph (c), from the representation of a client, if: (1) the representation will result in violation of Rule 3.08, other applicable rules of professional conduct or other law; (2) the lawyer's physical, mental or psychological condition materially impairs the lawyer's fitness to represent the client; or (3) the lawyer is discharged, with or without good cause. (b) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes may be criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation. 17

A lawyer should not agree to represent a client in a matter unless the lawyer can fulfill her obligations to the client competently, properly, and without any improper conflicts of interest. A lawyer must decline employment or withdraw from representing a client if the representation will cause the lawyer to engage in conduct the lawyer knows is illegal or conduct that violates the disciplinary rules or other law. A client may discharge a lawyer at any time, with or without cause, subject to payment of the lawyer’s fees. Whether a client can discharge appointed counsel depends on applicable law, and the client should be made aware of the potential consequences of her actions, including the possibility that she may end up having to represent herself. If the client lacks the legal capacity to discharge the lawyer, the lawyer may initiate conservatorship proceedings to protect the client’s interests. A lawyer may withdraw if doing so can be accomplished without a material adverse effect on the client’s interests. A client’s insistence on pursuing a course of action that the lawyer reasonably believes is criminal or fraudulent provides another basis for voluntary withdrawal. If the client insists on pursuing a course of action that the lawyer finds imprudent or repugnant or with which the lawyer fundamentally disagrees, the lawyer may seek to withdraw from the client’s case. Discovering that the client has misused the lawyer’s services in the past is another ground for voluntary withdrawal. If the client refuses to comply with terms of an agreement pertaining to the representation, such as payment of fees or court costs or concerning the scope of the lawyer’s representation, a lawyer may withdraw after duly warning the client that the client is not complying with the agreement. Although withdrawal under paragraph (b)(2) through (b)(7) is optional, it is permitted even if it has a material adverse effect on the client’s interests. Upon discharge or withdrawal, the lawyer must take all reasonable steps to mitigate the consequences to the client. A lawyer may retain a client’s file as security for a fee only to the extent permitted by law. Who does the client’s file belong to, and who gets to keep it after the lawyer’s representation ends? In Tex. Comm. on Prof. Ethics, Op. 570 (May 2006), the Committee addressed the issue of whether a lawyer could refuse to turn over notes that the lawyer had made in the course of and in furtherance of representing a former client. The Committee stated that “[r]ead together, Rules 1.14(b) and 1.15(d) provide that, generally, the documents in a lawyer's file that are property to which the client is entitled must be transferred to the client upon request unless the lawyer is permitted by law to retain those documents and can do so without prejudicing the interests of the client in the subject matter of the representation.” 18

Despite the strong presumption in favor of the client, the Committee acknowledged that there may be certain situations in which withholding a lawyer’s notes from a former client would be justified: the Committee recognizes that there are some other unusual circumstances that would justify the withholding of certain lawyer's notes from a client. Examples include notes that contain information obtained in discovery subject to a court's protective order forbidding disclosure of the information to the client, notes where the disclosure would violate the lawyer's duty to another person, and notes containing information that could reasonably be expected to cause serious harm to a mentally ill client. See generally Comment c to Section 46 of the Restatement. These exceptions are based on a lawyer's duties owed to others, including other clients, third persons and courts, or to the client, but are not based on the lawyer's own interests or concerns vis-àvis the client. Thus, a lawyer may withhold from a client or former client certain specific notes (or portions of notes) when required to do so by a court or when not doing so would violate a duty owed to a third person or risk causing serious harm to the client. Accordingly, documents that the former client is entitled to obtain include a lawyer's notes that constitute work product and relate to the client and the lawyer's representation of the client. Rule 1.15(d) requires that any such documents must be given to the client upon request unless the lawyer is permitted by the exceptions. In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013), relator, who represented the defendant in his capital murder trial, refused to turn over his former client’s file to postconviction counsel because his former client did not authorize him to provide successor counsel with the file. The CCA emphasized that the former client’s file indeed belonged to the former client. Id. at 704-05. The CCA further emphasized that a competent client has the right to prevent his file from being provided to successor counsel, even if the decision is not necessarily in her best interest: Thus, if the client makes a voluntary decision not to turn over his or her file, a client’s former counsel is obligated to refuse to provide a copy of the client’s file to facilitate the work of successor counsel. This is because the agent (the client’s former attorney) may not relinquish dominion and control of the principal’s property without the principal’s permission absent circumstances inapplicable in this case (e.g., an attorney lien, incompetency). This is true even if the client decides, against his or her best interests, not to relinquish the trial file to subsequent counsel because a legally competent client can define his or her own best interests, and that decision will control. 19

Id. at 707-08. Relator was granted relief because his former client’s competency was not an issue, and as his former client’s counsel and agent, relator was ethically obligated to honor his former client’s decision not to turn his file over to successor counsel. Id. at 709-10. Dealing with clients under a disability Rule 1.16. Clients with Diminished Capacity (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for another reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action. Such action may include, but is not limited to, consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, attorney ad litem, amicus attorney, or conservator, or submitting an information letter to a court with jurisdiction to initiate guardianship proceedings for the client. (c) When taking protective action pursuant to (b), the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests. A lawyer should strive to treat a client with diminished capacity with attention and respect and treat such a client as a normal client to the extent it is possible for the lawyer to do so. If the lawyer represents a ward and the ward has a guardian whose interests are adverse to the ward’s, the lawyer may be obligated to prevent or rectify the ward’s misconduct. If the guardian is not acting in the ward’s best interest, the lawyer may have to seek the guardian’s removal. See Urbish v. 127th Judicial Dist. Ct., 708 S.W.2d 429, 431-32 (Tex. 1986)(holding that, considering only the ward’s best interests, a trial court can replace a guardian if the guardian has an adverse interest to the ward.) Although a lawyer may disclose confidential information pertaining to a client with diminished capacity under Rule 1.16(c), the lawyer’s authority to disclose in order to protect the client’s interests is limited and the lawyer cannot disclose more information than is reasonably necessary. 20

Advisor Rule 2.01. Advisor In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice. Lawyers must give their clients straightforward advice, even if it is unpleasant and not what the client wants to hear. A lawyer may refer to relevant moral and ethical considerations when advising her clients. If the matter is within the domain of another profession, the lawyer should refer the client to consult with a professional in the applicable field when appropriate. A lawyer may initiate advising a client if it is in the client’s best interest for the lawyer to do so. Zealous advocacy Rule 3.01. Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous. Lawyers must not file frivolous or knowingly false pleadings, nor can they assert knowingly false claims or defenses. Pleadings and assertions are frivolous if made primarily to harass or maliciously injure another person, and if the lawyer cannot make an argument that her action is either consistent with existing law or supported by a good faith argument that existing law should be extended, modified, or reversed. In federal court, Fed. R. Civ. P. 11(b) specifies that when an attorney signs a pleading, she is representing that the pleading is not being presented for an improper purpose, including harassment, causing unnecessary delay, or unnecessarily increasing litigation costs; that there is a basis in existing law or a non-frivilous argument to extend, modify, or reverse existing law, or to establish new law; that the facts have evidentiary support or will have evidentiary support after there has been a reasonable opportunity for additional discovery; and that factual denials are based on based on the evidence or a reasonable belief or lack of information. After notice and hearing, a party, law firm, or attorney may be sanctioned for violating FRCP 11(b).

Duties to the court Candor toward the tribunal Rule 3.03. Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false. (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. (c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible. A lawyer must zealously present her client’s case while simultaneously maintaining client confidentiality and being candid with the court. If the opposing party has failed to disclose authority in the controlling jurisdiction that is directly adverse to the lawyer’s position, the lawyer must disclose the adverse authority to the court. A lawyer must try to dissuade a client or other person from offering evidence or other material that the lawyer knows to be false. A lawyer cannot offer evidence or other material that she knows to be false. If the client insists on offering the false evidence, the lawyer may seek to withdraw. If the lawyer subsequently learns that material evidence or testimony is false, she must try to get the client to correct the false testimony or withdraw the false evidence. If the lawyer is unsuccessful, she must take additional remedial measures. In a criminal case, if the lawyer knows the client intends to commit perjury, the lawyer must take reasonable remedial measures, which may include revealing the perjury. 22

A lawyer may refuse to offer evidence she believes is false, even if she does not know that the evidence is false. A lawyer’s obligation to rectify the presentation of false evidence continues as long as there is a reasonable possibility that corrective legal action can be taken. In Tex. Comm. on Prof. Ethics, Op. 504 (1995), the Commission concluded that a lawyer did not violate Rule 3.03 when he failed to correct erroneous statements that a prosecutor made to the court about his client’s prior criminal record. Neither defense counsel nor the client made any false statements to the court about this issue. Here, the prosecutor mistakenly advised the court that the defendant had no prior convictions and then turned to defense counsel and asked, “Right?” Neither defense counsel nor the defendant responded to the prosecutor’s question, and the trial court granted probation. The defendant had previously informed defense counsel about his prior felony convictions, so defense counsel knew that the prosecutor’s statement to the court was inaccurate when it was made. After trial, defense counsel advised the defendant that if a probation officer asked him about his prior arrests and convictions, he had to answer and answer truthfully. Probation officials learned about the defendant’s prior felony convictions when they asked the defendant truthfully answered their questions. Rules 3.03(a)(1), (a)(2), and (a)(5) are exceptions to a lawyer’s duty to maintain client confidentiality pursuant to Rule 1.05. The issue is whether a lawyer may remain silent when neither he nor his client has made a false statement to the court, but the lawyer knows that the court is relying on mistaken information that will benefit the lawyer’s client. If a judge specifically asks a lawyer whether his client has any prior felony convictions, the lawyer must answer truthfully. Likewise, if the court’s question to defense counsel occurs after another person has made an inaccurate statement, the defense lawyer must correct the erroneous information, make a statement indicating that the lawyer is not corroborating the incorrect statement, or ask the court to excuse him from answering the question. Silence by the lawyer in this situation does not constitute the lawyer’s knowing use of false evidence. Since the client did not commit fraud or perjury, the lawyer’s silence does not constitute assisting a fraudulent or criminal act. The lawyer cannot disclose his client’s prior felony convictions because doing so is prohibited by Rule 1.05. 23

In Ibarra v. State, 782 S.W.2d 234 (Tex. App.—Houston [14th Dist.] 1989), no pet., the State filed a motion to strike Ibarra’s brief because Ibarra’s attorney neglected to point out directly adverse controlling authority. Id. at 235. Nor did Ibarra’s attorney argue that the directly adverse controlling authority should be modified or overruled. Id. In fact, Ibarra’s counsel had filed more than forty briefs on the same obscenity issue and had not substantively altered his “fill-in-the-blanks” briefs. Id. Although the appellate court did not grant the State’s motion to strike Ibarra’s brief out of concern it would further delay the proceedings, the Court advised Ibarra’s counsel that he would be referred to the state bar for disciplinary action and subject to the Court’s contempt power if he filed another “fill-in-the-blank” brief. Id. Fairness in adjudicatory proceedings Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not: (a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; or (3) a reasonable fee for the professional services of an expert witness. (c) except as stated in paragraph (d), in representing a client before a tribunal: (1) habitually violate an established rule of procedure or of evidence; (2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness; (3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein;

(4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or (5) engage in conduct intended to disrupt the proceedings. (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience. (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. Tex. Penal Code § 37.09(a)(1) prohibits a person who knows that there is a pending or ongoing investigation or official proceeding from altering, destroying, or concealing any records, documents, or things, with the intent to impair their verity, legibility, or availability as evidence. Tex. Penal Code §37.10(a)(3) prohibits the intentional destruction, concealment, removal, or impairment of the verity, legibility, or availability of a governmental record. Violation of subsection (a) of Tex. Penal Code § 37.09 and subsection (a)(3) of Tex. Penal Code §37.10(a) is a third-degree felony. In Tex. Comm. on Prof. Ethics, Op. 690 (Oct. 2020), the Commission addressed the question of whether a defense attorney violated the disciplinary rules when he refused to reveal the existence of letters he received from his incarcerated client until trial and also refused to allow the prosecutor to inspect the letters until the trial court ordered him to do so. The Commission emphasized that Rule 3.04(a) applies only to unlawful obstruction or concealment, meaning conduct that violates a court order, statute, or other kind of mandatory disclosure obligation. The Committee also stated that it was unaware “of any authority that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.” The Commission acknowledged that “there is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant.” The Commission further acknowledged that the state of law in Texas as to whether an attorney has a selfexecuting obligation to turn over certain kinds of evidence, including fruits and instrumentalities of a crime, is unclear, but that “a Texas court might recognize a selfexecuting obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.” 25

With respect to the issue presented, the Commission concluded that the lawyer did not have an obligation to turn over the letters he received from his incarcerated client in the absence of a court order or agreement to do so.

of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal. The decision to appeal belongs to the client. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988); see also American Bar Association, Criminal Justice Standards for the Defense Function (4th ed. 2017), Standards 49.1(a)-(d); 4-9.2(i)(describing trial counsel’s continuing obligation to protect client’s appellate remedies upon conclusion of trial.) If trial counsel does not withdraw, he “still represents [the client] on appeal.” Ward, 740 S.W.2d at 796 (citation omitted.) [Trial] “counsel may seek the trial court’s permission to withdraw at any time so long as the defendant’s appellate rights are protected, the appellant is given notice of withdrawal, and the trial court’s signed order permitting withdrawal is in the record, and if the defendant is still indigent, substitute counsel is appointed.” Id. at 797 (citation omitted.) In other words, “[trial] counsel can’t be permitted simply to bow out without notice either to court or client and frustrate forever the right of the client to protect his vital interests.” Atilus v. U.S., 406 F.2d 694, 696 (5th Cir. 1969). A lawyer may not knowingly assist a client in committing criminal or fraudulent conduct. She cannot reveal the client’s wrongdoing except as permitted under Rule 1.05. Nor can the lawyer further the client’s unlawful purpose or continue assisting the client upon discovering the client’s misconduct. The lawyer may have to withdraw from the client’s case. The lawyer must use reasonable efforts to dissuade the client from committing a crime or fraud, and if the client has utilized the lawyer’s services to engage in such conduct, the lawyer must use reasonable efforts to persuade the client to take corrective action. Communicating with clients Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation . A lawyer must provide her client with enough information about the objectives of the representation to enable the client to participate intelligently in discussions about the 7

Opinion 504 August 1994 Tex. Comm. on Professional Ethics, Op. 504, V. 58 Tex. B.J. 718 (1995)

[PEC Matter No. 93-5] QUESTION PRESENTED Does a lawyer's duty of candor to a tribunal under Texas Disciplinary Rule 3.03 require defense counsel in a criminal case to correct mistaken or inaccurate statements made in court by a prosecutor about prior convictions of the defendant, if neither the defense lawyer nor the defendant makes any false statements to the court about such matters? STATEMENT OF FACTS Defendant in criminal trial asserted his Fifth Amendment privilege against self-incrimination and did not testify. The prosecutor introduced evidence in the form of affidavits and police reports, and the court ruled that the defendant was guilty. During the sentencing and punishment phase of the trial, the judge asked defense counsel whether he intended to seek to qualify defendant for probation. Defense counsel advised the court that probation could be considered under applicable law regardless if the defendant testified or not as to the absence of any prior felony convictions. The judge then asked the prosecutor, "Does the defendant have any prior convictions?" The prosecutor mistakenly stated to the court that police records reflect that defendant has no prior convictions. Prosecutor turned to the defendant and asked, "Right?" The defendant and defense counsel make no statement and the court granted probation of defendant's sentence. When the judge asked the prosecutor about prior convictions of defendant, defense counsel knew that the prosecutor's statement to the court was inaccurate because defendant had previously informed defense counsel about his prior felony convictions. After the trial concluded, defense counsel advised defendant that if he is asked by probation officials about his prior arrests or convictions, defendant must answer and must answer truthfully. In fact, probation officials subsequently learn about defendant's prior convictions as a result at a post-trial interview in which the defendant answered such questions truthfully about his prior convictions. DISCUSSION Ethical dilemmas arising under Texas Disciplinary Rule 3.03 present very difficult issues because ethics rules governing lawyers' conduct attempt to balance, on the one hand, a lawyer's duty of candor to the court and, on the other hand, a lawyer's duty of loyalty to and zealousness on behalf of a client, along with a duty to maintain confidential client information. Establishing the line between these competing obligations requires an examination of the specific facts in view of the standards for candor to the tribunal articulated in the Texas Disciplinary Rules. Pursuant to Texas Disciplinary Rule 3.03(a)(1), a lawyer may not knowingly make a false statement of material fact or law to a tribunal; pursuant to Texas Disciplinary Rule 3.03(a)(2), a lawyer may not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; pursuant to Texas Disciplinary Rule 3.03(a)(5), a lawyer may not knowingly offer or use evidence that the lawyer knows to be false. These rules constitute exceptions to a lawyer's duty to maintain client confidential information under Texas Disciplinary Rule 1.05.

The particular question presented in the Statement of Facts does not involve a lawyer knowingly making a false statement of material fact or law, or a situation where the client has permitted perjury or made a fraudulent statement in which the lawyer's silence may be tantamount to assisting a criminal or fraudulent act. Rather, the situation presents the issue of whether a lawyer may remain silent when neither he nor his client has made a false statement to the tribunal, but the lawyer knows that the court is relying upon mistaken or inaccurate information stated in court to the benefit of his client. Several situations related to the issue of a criminal lawyer's silence about his client's prior criminal convictions have been considered in ethics opinions previously issued by the American Bar Association Committee on Ethics and Professional Responsibility. In ABA Formal Opinion 287 (1953) dealing with the earlier ABA Canons of Professional Ethics, three very similar situations were considered. These situations included: (1) the judge asks the defendant whether he has a criminal record and the defendant falsely answers that he has none; (2) the judge asks the defendant's lawyer whether his client has a criminal record; and 3) the judge is told in court by the custodian of criminal records that the defendant has no criminal record and the lawyer knows this information is incorrect based upon his own investigation or upon his client's prior disclosure of information to him. The ABA Committee concluded under the earlier Canons of Professional Ethics that in each of these three situations, the lawyer's obligation under Canon 37 to preserve a client's confidential information prohibits any disclosure to the court of information the lawyer has concerning his client's prior criminal record. However, the lawyer must not make any false statement to the court. After adoption of the Model Rules of Professional Conduct by the American Bar Association, the ABA's Committee on Professional Ethics reconsidered the issues presented in Formal Opinion 287. In ABA Formal Opinion 87-353 issued in 1987, the ABA Committee stated that Model Rule 3.3(a) and 3.3(b), which are virtually identical to Texas Disciplinary Rules 3.03(a)(1) and (2), represent a major policy change with regard to a lawyer's duty when his client testifies falsely. It is now mandatory under Texas Disciplinary Rule 3.03(a)(1) (as well as under Model Rule 3.3(a)), that when a lawyer knows that his client has committed perjury, the lawyer must disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify the perjury. A lawyer's silence under those circumstances will have the effect of corroborating or assisting fraudulent misstatements made by a client. Likewise, under Texas Disciplinary Rule 3.03(a)(1) of the Texas Disciplinary Rules (and Model Rule 3.3(a)(1) and if a judge specifically asks the defendant's lawyer whether his client has any prior criminal convictions, the lawyer may not make any false statements of fact to the court. If the question by the court to the defendant's lawyer follows an inaccurate statement in court by another person such as in the Statement of Facts, the lawyer must correct the inaccurate information made in court by a person other than the lawyer or his client, or make some other statement to the court indicating that the lawyer refuses to corroborate the inaccurate statement, or the lawyer may ask the court to excuse him from answering the question. If the lawyer refuses to corroborate the inaccurate statement or ask to be excused from answering the question, the court is at least alerted to a problem and presumably will inquire further to discover the truth. Texas Disciplinary Rule 3.03(a)(2) requires disclosure to the tribunal only when it is necessary for a lawyer to "avoid assisting a criminal or fraudulent act." Hence, a lawyer's silence in the absence of client fraud or perjury does not require disclosure of the client's confidential information or correcting false information provided to the court by persons other than the lawyer

or his client. Texas Disciplinary Rule 3.03(a)(5) further provides that a lawyer shall not knowingly "offer or use evidence that the lawyer knows to be false." Does silence by the lawyer and his client in the situation described in the Statement of Facts constitute the use of evidence that the lawyer knows to be false? The phrase "or use" evidence was added into Texas Disciplinary Rule 3.03(a)(5) primarily to address a circumstance where a client or other witness who testified truthfully under direct examination later provides false testimony under cross-examination by another party. See Schuwerk & Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Houston Law Review 1, 264, 265 (October 1990). Comment 13 to Texas Disciplinary Rule 3.03 suggests that while a lawyer should urge his client to correct or withdraw false evidence given in cross-examination, disclosure of such perjured testimony or other false evidence given during examination by another party is discretionary rather than mandatory. Accordingly, silence by the lawyer under the Statement of Facts should not be deemed to be "use" of false testimony under Texas Disciplinary Rule 3.03(a)(5). CONCLUSION Since neither lawyer or his client in the Statement of Facts made a false statement to the court, the lawyer has not violated Texas Disciplinary Rule 3.03(a)(1); since the client did not commit fraud or perjury, the lawyer's silence does not constitute assisting a criminal or fraudulent act. The lawyer may remain silent without violating Texas Disciplinary Rule 3.03, and therefore is prohibited under the Texas Disciplinary Rule 1.05 from disclosing confidential information about his client's prior convictions.

Opinion Number 570 May 2006 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer refuse a former client's request to disclose or turn over the lawyer's notes made in the course of and in furtherance of his representation of the client? STATEMENT OF FACTS A former client of a lawyer has demanded to see the lawyer's file on the representation of the client. The lawyer has previously provided copies of most of the file to the former client but has withheld copies of the lawyer's notes created during the representation of the client. The lawyer is not claiming a lawyer's lien or other similar right over the notes. DISCUSSION Although no lawyer's lien is asserted in this case, the issue here considered has arisen in the past primarily in cases in which the lawyer was asserting such a lien. In the context of cases concerning a lawyer's lien, this Committee has distinguished between matters of legal ethics and matters of law. Specifically, prior Professional Ethics Committee Opinions have recognized that a lawyer is permitted to retain a client file pursuant to a proper legal claim so long as doing so will not prejudice the client in the subject matter of the representation. See e.g. Opinion 411 (January 1984) and Opinion 395 (May 1979, modified March 1980). It is also important to note that a lawyer's file may contain many different types of documents or records created by the lawyer, documents obtained from the client, documents obtained from third persons, pleadings, court orders and contracts. A lawyer's ethical obligations may vary depending on the type, source, or content of the document and other relevant factors. This opinion is limited to a consideration of the issue with respect to notes created by a lawyer, and this opinion does not address the issue with respect to other types of documents or information contained in a lawyer's file. Rule 1.14(b) of the Texas Disciplinary Rules of Professional Conduct provides that "[e]xcept as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client ... any funds or other property that the client ... is entitled to receive ...." In Hebisen v. State, 615 S.W. 2d 866 (Tex. App. Houston [1st Dist.] 1981, no writ), the court interpreted the meaning of the predecessor of current Rule 1.14(b), holding that the term "other properties" included the client's papers and other documents that the lawyer had in his file. 615 S.W.2d at 868. Rule 1.15(d) provides as follows:

"(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation." Read together, Rules 1.14(b) and 1.15(d) provide that, generally, the documents in a lawyer's file that are property to which the client is entitled must be transferred to the client upon request unless the lawyer is permitted by law to retain those documents and can do so without prejudicing the interests of the client in the subject matter of the representation. In In re George, 28 S.W.3d 511 (Tex. 2000), the Court ruled on the issue of whether the work product of disqualified counsel should be made available to the disqualified counsel's client and successor counsel. The Court struggled with the conflict between the client's right to access work product and the interest in preserving the purposes of the underlying disqualification by restricting access to the tainted work product. In the course of its analysis, the Court noted that "[t]he attorney is the agent of the client, and the work product generated by the attorney in representing the client belongs to the client." 28 S.W.3d at 516, citing Rule 1.15(d) and the opinion in Hebisen v. State, discussed above. In Occidental Chemical Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995), the Texas Supreme Court described the work product privilege: "First, the privilege protects the attorney's thought process, which includes strategy decisions and issue formulation, and notes or writings evincing those mental processes. Second, the privilege protects the mechanical compilation of information to the extent such compilation reveals the attorney's thought processes." 907 S.W.2d at 490. Work product has been subsequently defined in Rule 192.5(a) of the Texas Rules of Civil Procedure as follows: "(a) Work product defined. Work product comprises: (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents: or (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents." In Resolution Trust Corporation v. H ___, P.C., 128 F.R.D. 647 (N.D. Tex. 1989), the court considered the issue of the ownership of files generated by a law firm during its representation of a client and determined that the entire contents of the law firm's files concerning the representation of the client belonged to the client and ordered the law firm to turn over the entire contents of the firm's files, including work product generated by the lawyer such as notes and legal memoranda. In reaching this decision the court considered the predecessor to current Rule 1.14(b), this Committee's Opinion 395 (May 1979, modified March 1980), Hebisen v. Texas, 615 S.W. 2d 866 (discussed above), and Matter of Kaleidoscope, Inc., 15 Bankr. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 Bankr. 729 (D.C. Ga. 1982). The court considered and rejected arguments

that the files did not have to be turned over when there were allegations of misconduct by the lawyer or because the documents contained information that was attorney-client privileged or work product (including documents produced in anticipation of litigation with the client). Restatement (Third) of The Law Governing Lawyers (American Law Institute 2000) (the "Restatement") Section 46 addresses a lawyer's duty to provide to the client documents held by the lawyer. A portion of the discussion in Comment c to Section 46 of the Restatement recognizes circumstances that Texas courts have not recognized but that some courts in other jurisdictions have found would justify not providing a portion of a lawyer's client file to the client: "A lawyer may refuse to disclose to the client certain law-firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client's misconduct, or the firm's possible malpractice liability to the client. The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved ....." In light of the Texas cases discussed above that recognize a strong obligation on Texas lawyers to provide files to clients and in the absence of any Texas court decision recognizing a limitation such as that stated in the Restatement passage quoted above, the Committee is of the opinion that the exception described in the quoted passage for internal law-firm materials relating to a client should not apply in the application of Rules 1.14(b) and 1.15(d). As in all other circumstances, the lawyer is an agent of and in a fiduciary relationship with the client. The Committee recognizes that a lawyer's motivation for withholding his notes from a client may be the result of a temptation to put the lawyer's own interests ahead of those of the client. The Committee believes that allowing a lawyer to unilaterally make a decision to withhold from a client notes relating to the client and created in the course of the representation of the client because the notes may reflect the firm's interests vis-à-vis the client undermines the duties owed by the lawyer to the client. In addition, withholding such notes from a client denies the client the full benefit of the services the lawyer agreed to provide to the client. However, like the Restatement, the Committee recognizes that there are some other unusual circumstances that would justify the withholding of certain lawyer's notes from a client. Examples include notes that contain information obtained in discovery subject to a court's protective order forbidding disclosure of the information to the client, notes where the disclosure would violate the lawyer's duty to another person, and notes containing information that could reasonably be expected to cause serious harm to a mentally ill client. See generally Comment c to Section 46 of the Restatement. These exceptions are based on a lawyer's duties owed to others, including other clients, third persons and courts, or to the client, but are not based on the lawyer's own interests or concerns vis-àvis the client. Thus, a lawyer may withhold from a client or former client certain specific notes (or portions of notes) when required to do so by a court or when not doing so would violate a duty owed to a third person or risk causing serious harm to the client. Accordingly, documents that the former client is entitled to obtain include a lawyer's notes that constitute work product and relate to the client and the lawyer's representation of the client. Rule 1.15(d) requires that any such documents must be given to the client upon request unless the lawyer is permitted by the exceptions

discussed above or by other law to retain those documents and can do so without prejudicing the interests of the former client in the subject matter of the representation. CONCLUSION Under the Texas Disciplinary Rules of Professional Conduct, a lawyer must upon request provide to a former client the notes of the lawyer from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 665 December 2016

QUESTIONS PRESENTED 1. What are a Texas lawyer’s obligations under the Texas Disciplinary Rules of Professional Conduct to prevent the inadvertent transmission of metadata containing a client’s confidential information? 2. What are a Texas lawyer’s obligations under the Texas Disciplinary Rules of Professional Conduct when the lawyer receives from another lawyer a document that contains metadata that the receiving lawyer believes contains and inadvertently discloses confidential information of the other lawyer’s client? For example, is the receiving lawyer permitted to search for, extract, and use the confidential information, and is the receiving lawyer required to notify the other lawyer of the receipt of the confidential information?

STATEMENT OF FACTS Lawyer A represents a client in the settlement of a civil lawsuit. Lawyer A sends a draft settlement agreement to opposing counsel, Lawyer B, as an attachment to an email. The attachment includes embedded data, commonly called metadata. This metadata is digital data that is not immediately visible when the document is opened by the recipient of the email but can be read either through the use of certain commands available in word-processing software or through the use of specialized software. In this case, the metadata includes information revealing confidential information of the client of Lawyer A related to ongoing settlement negotiations. Lawyer B has no reason to believe that Lawyer A intended to include this metadata in the attachment.

DISCUSSION In this opinion, “confidential information” refers to both privileged information and unprivileged client information, as defined in Rule 1.05(a) of the Texas Disciplinary Rules of Professional Conduct. The exchange of electronic documents is an essential part of modern law practice. When an electronic document is created or edited, some computer programs will automatically embed information in the document. Embedded information that describes the history, tracking, or management of an electronic document is commonly known as “metadata.” A common example of metadata is embedded information that describes the identity of the owner of the computer that created the document and the date and time of creation. Similarly, some computer programs use

embedded metadata to track the changes made to a document as well as the comments of the various reviewers of the document. Frequently the exchange of metadata between lawyers is either mutually beneficial or otherwise harmless, such as when a lawyer intentionally transmits a document containing tracked changes in order to facilitate the negotiating process. However, the inadvertent disclosure of metadata containing a client’s confidential information could be harmful to the client. The risk of such inadvertent disclosure is heightened by the fact that metadata is generally not visible from the face of an electronic document unless the user takes some additional action. The first question raised is whether the Texas Disciplinary Rules of Professional Conduct require lawyers to take steps to prevent the inadvertent transmission of metadata containing confidential information. The answer is governed by Rules 1.01 and 1.05. With certain exceptions not relevant here, Rule 1.01 generally prohibits a lawyer from accepting or continuing “employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence.” “Competence,” as defined by the Terminology Section of the Texas Disciplinary Rules, “denotes possession or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client.” Rule 1.05 generally prohibits lawyers from knowingly revealing confidential information to a lawyer representing the opposing party, subject to limited exceptions set out in the Rule. Rule 1.05 reflects a lawyer’s duty “to maintain confidentiality of information acquired by the lawyer during the course of or by reason of the representation of the client.” Comment 2 to Rule 1.05. “Knowingly,” as used in Rule 1.05, “denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Terminology Section of the Texas Disciplinary Rules. In the opinion of the Committee, a lawyer’s duty of competence requires that lawyers who use electronic documents understand that metadata is created in the generation of electronic documents, that transmission of electronic documents will include transmission of metadata, that the transmitted metadata may include confidential information, that recipients of the documents can access metadata, and that actions can be taken to prevent or minimize the transmission of metadata. Lawyers therefore have a duty to take reasonable measures to avoid the transmission of confidential information embedded in electronic documents, including the employment of reasonably available technical means to remove such metadata before sending such documents to persons to whom such confidential information is not to be revealed pursuant to the provisions of Rule 1.05. Commonly employed methods for avoiding the disclosure of confidential information in metadata include the use of software to remove or “scrub” metadata from the document before transmission, the conversion of the document into another format that does not preserve the original metadata, and transmission of the document by fax or hard copy. Whether a lawyer has taken reasonable measures to avoid the disclosure of confidential information in metadata will depend on the factual circumstances. Relevant factors in determining reasonableness include the steps taken by the lawyer to prevent the disclosure of the confidential information in metadata, the sensitivity of the metadata revealed, the identity of the intended 2

recipient, and other considerations appropriate to the facts. Not every inadvertent disclosure of confidential information in metadata will violate Rule 1.05. The second question is whether the Texas Disciplinary Rules impose particular duties on a lawyer who receives an electronic document containing metadata that appears to include confidential information of another party. There is no specific provision in the Texas Disciplinary Rules requiring a lawyer to take or refrain from taking any particular action in such a situation. See Professional Ethics Committee Opinion 664 (October 2016) (“The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information outside the normal course of discovery.”). In the absence of specific provisions of the Texas Disciplinary Rules governing this situation, the Committee can offer only limited guidance for lawyers dealing with the receipt of documents containing metadata. In most circumstances, the provisions of the Texas Disciplinary Rules that must be considered by lawyers with respect to the receipt of documents containing metadata are Rule 8.04(a)(3), which requires that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” and Rule 3.03(a)(1), which requires that a lawyer shall not knowingly “make a false statement of material fact or law to a tribunal.” Thus, although the Texas Disciplinary Rules do not prohibit a lawyer from searching for, extracting, or using metadata and do not require a lawyer to notify any person concerning metadata obtained from a document received, a lawyer who has reviewed metadata must not, through action or inaction, convey to any person or adjudicative body information that is misleading or false because the information conveyed does not take into account what the lawyer has learned from such metadata. For example, a Texas lawyer, in responding to a question, is not permitted to give an answer that would be truthful in the absence of metadata reviewed by the lawyer but that would be false or misleading when the lawyer’s knowledge gained from the metadata is also considered. The Committee notes that professional ethics standards in some other jurisdictions include specific requirements applicable to this situation. These specific requirements vary from state to state and may include a requirement to notify the sender of a document believed to contain inadvertently sent metadata and a requirement not to search for or read such metadata. For example, a number of jurisdictions have adopted part or all of the approach used in the current version of Rule 4.4(b) of the American Bar Association Model Rules of Professional Conduct, which provides: “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” To the extent a Texas lawyer becomes subject to the disciplinary rules of other jurisdictions, the lawyer may be subject to additional requirements concerning the treatment of metadata that would not be applicable if only the Texas Disciplinary Rules of Professional Conduct were considered.

The Committee also cautions that a lawyer’s conduct upon receipt of an opponent’s confidential information may have material consequences for the client, including the possibility of procedural disqualification. See In re Meador, 968 S.W.2d 346, 351-52 (Tex. 1998) (in a case not involving metadata, discussing factors to be considered in deciding whether to disqualify counsel who received the opposing party’s privileged information outside of discovery, including the promptness with which the lawyer notified the opposing counsel of the circumstances). If in a given situation a client will be exposed to material risk by a lawyer’s intended treatment of an opponent’s inadvertently transmitted confidential information contained in metadata, the lawyer should discuss with the client the risks and benefits of the proposed course of action as well as other possible alternatives so that the client can make an informed decision. See Rule 1.03(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”). This opinion applies only to the voluntary transmission of electronic documents outside the normal course of discovery. The production of electronic documents in discovery is governed by court rules and other law, which may prohibit the removal or alteration of metadata. Court rules may also govern the obligations of a lawyer who receives inadvertently transmitted privileged information in the course of discovery. See, e.g., Tex. R. Civ. P. 193.3(d).

CONCLUSION The Texas Disciplinary Rules of Professional Conduct require lawyers to take reasonable measures to avoid the transmission of confidential information embedded in electronic documents, including the employment of reasonably available technical means to remove such metadata before sending such documents to persons other than the lawyer’s client. Whether a lawyer has taken reasonable measures to avoid the disclosure of confidential information in metadata will depend on the factual circumstances. While the Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct for a lawyer who receives from another lawyer an electronic document containing confidential information in metadata that the receiving lawyer believes was not intended to be transmitted to the lawyer, court rules or other applicable rules of conduct may contain requirements that apply in particular situations. Regardless, a Texas lawyer is required by the Texas Disciplinary Rules to avoid misleading or fraudulent use of information the lawyer may obtain from the metadata. In the absence of specific governing provisions, a lawyer who is considering the proper course of action regarding confidential information in metadata contained in a document transmitted by opposing counsel should determine whether the possible course of action poses material risks to the lawyer’s client. If so, the lawyer should explain the risks and potential benefits to the extent reasonably necessary to permit the client to make informed decisions regarding the matter.

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS OPINION NO. 680 September 2018

QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct may a lawyer use cloud-based client data storage systems or use cloud-based software systems for the creation of client-specific documents where confidential client information is stored or submitted to a cloud-based system?

STATEMENT OF FACTS A lawyer is considering subscribing to various cloud-based electronic storage and software systems that allow users to store confidential client information or prepare form legal documents by uploading confidential client information for insertion into those form documents. The lawyer is concerned because these cloud-based electronic storage and software systems are owned by private companies, the various computer servers on which this client confidential information would reside are or may be located in other countries, the client information could be accessed by employees of these private companies, and there is the possibility of these servers and the confidential information residing on them being “hacked” by third parties or being rendered inaccessible as a result of a cloud storage vendor going out of business. The lawyer questions whether it is ethical to use cloud-based electronic storage or software systems given these conditions and the potential disclosure risks to confidential client information.

DISCUSSION Rule 1.05(a) of the Texas Disciplinary Rules of Professional Conduct broadly defines client “confidential information” as including both “privileged information” and “unprivileged client information.” The latter means “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.” Rule 1.05(a). Rule 1.05(b) provides in part that, “[e]xcept as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or former client to: (i) a person that the client has instructed is not to receive the information; or 1

(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.” A lawyer violates Rule 1.05 if the lawyer knowingly reveals confidential information to any person other than those persons who are permitted or required to receive the information under paragraphs (b), (c), (d), (e), or (f) of the Rule. The Terminology section of the Rules states that “ʻ[k]nowinglyʼ . . . denotes actual knowledge of the fact in question” and that a “person’s knowledge may be inferred from circumstances.” Professional Ethics Opinion 648 (April 2015) addressed the question of whether a lawyer could ethically transmit client confidential information by email. The Committee concluded that, “considering the present state of technology and email usage, a lawyer may generally communicate confidential information by email. Some circumstances, may, however, cause a lawyer to have a duty to advise a client regarding risks incident to the sending or receiving of emails arising from those circumstances and to consider whether it is prudent to use encrypted email or another form of communication.” Similarly, Opinion 572 (June 2006) determined that, “[u]nder the Texas Disciplinary Rules of Professional Conduct, unless the client has instructed otherwise, a lawyer may deliver materials containing privileged information to an independent contractor, such as a copy service, hired by the lawyer in the furtherance of the lawyer's representation of the client if the lawyer reasonably expects that the confidential character of the information will be respected by the independent contractor.” Cloud-based electronic storage and software systems are in wide use among the general public and lawyers. While wide usage of an information storage method or software document creation system is not, in itself, justification for its use by lawyers, alternative methods of information storage and document preparation also have an inherent risk of disclosure or misuse—just as a privileged letter to a client through the U.S. Postal Service (versus transmission through email) can be intercepted or accessed by third parties and a client’s file in a lawyer’s office may be susceptible to access or disclosure by unauthorized parties without the lawyer “knowingly” revealing that information. Considering the present state of technology, its common usage to store confidential information, and the potential cost and time savings for clients, a lawyer may use cloudbased electronic data systems and document preparation software for client confidential information; however, lawyers should remain continually alert to the vulnerability of cloud-based vendors and systems to data breaches and whether a particular vendor or system appears to be unusually vulnerable, based on systemic failures by that vendor or system of which the lawyer should be aware. In certain circumstances, a lawyer may decide that some client confidential information is too vulnerable to unauthorized access or disclosure to risk its storage or use in a cloud-based electronic system or too vulnerable to such risk without that data being adequately encrypted or without additional technological safeguards in place. Data “hacking” by third parties is becoming increasingly well-known and can even occur with respect to client confidential information 2

stored on a server within a law firm. Therefore, a lawyer should remain reasonably aware of changes in technology and the associated risks—without unnecessarily retreating from the use of new technology that may save significant time and money for clients. In some circumstances it may be appropriate to confer with a client regarding these risks as applicable to a particular matter and obtain a client’s input regarding or consent to using cloud-based electronic data systems and document preparation software. Of course, if a client has given specific instructions regarding the use and protection of its client confidential information in a matter those instructions must be followed except when otherwise required or permitted by the provisions of Rule 1.05. Still, a lawyer must take reasonable precautions in the adoption and use of cloudbased technology for client document and data storage or the creation of client-specific documents that require client confidential information. These reasonable precautions include: (1) acquiring a general understanding of how the cloud technology works; (2) reviewing the “terms of service” to which the lawyer submits when using a specific cloudbased provider just as the lawyer should do when choosing and supervising other types of service providers; (3) learning what protections already exist within the technology for data security; (4) determining whether additional steps, including but not limited to the encryption of client confidential information, should be taken before submitting that client information to a cloud-based system; (5) remaining alert as to whether a particular cloudbased provider is known to be deficient in its data security measures or is or has been unusually vulnerable to “hacking” of stored information; and (6) training for lawyers and staff regarding appropriate protections and considerations. These precautions do not require lawyers to become experts in technology; however, they do require lawyers to become and remain vigilant about data security issues from the outset of using a particular technology in connection with client confidential information. The Committee refrains from setting out specific requirements for assessing reasonableness since some precautions become obsolete over time with changing technologies and the risks may change as well. Rule 1.01(a) requires that lawyers exhibit “competence” in representing clients. In Opinion 665 (December 2016), the Committee applied Rule 1.01 to a question involving a lawyer’s inadvertent transmission to third parties of electronic metadata within client documents and concluded that the Rule’s “competency” requirement was applicable to a lawyer’s technological competence in preserving client confidential information. The Committee reiterates here the necessity of competence by lawyers and their staff regarding data protection considerations of cloud-based systems.

CONCLUSION Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may use a cloud-based electronic data storage system or cloud-based software document preparation system to store client confidential information or prepare legal documents. However, lawyers must remain alert to the possibility of data breaches, unauthorized access, or disclosure of client confidential information and undertake reasonable precautions in using those cloud-based systems. 3

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 690 October 2020

QUESTION PRESENTED Does a lawyer who represents a defendant in a criminal matter violate the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so?

STATEMENT OF FACTS A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case. While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing.

DISCUSSION “Unlawful” obstruction or concealment in general. Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct prohibits the unlawful obstruction, concealment, alteration or destruction of evidence. Rule 3.04(a) provides: “A lawyer shall not . . . unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.” To constitute a violation of Rule 3.04(a), the obstruction or concealment must be done “unlawfully.” The term “unlawfully” is not defined in the Rules. Nevertheless, as discussed below, the term “unlawfully” is generally understood to refer to conduct that violates a statute, court order, or other mandatory disclosure obligation.

Any obstruction or concealment that violates criminal law would clearly be “unlawful” and therefore would violate Rule 3.04(a). Criminal conduct related to obstruction or concealment could also likely violate subsections (2), (3), (4), or (12) of Rule 8.04(a): “A lawyer shall not: ... (2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (4) engage in conduct constituting obstruction of justice; . . . [or] (12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.” Whether particular conduct violates a criminal obstruction statute is a question of substantive law that is outside the Committee’s purview. The Committee is not aware of any authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime. Obstruction or concealment of evidence is also “unlawful” if it violates a court order. For example, a lawyer in possession of tangible evidence may violate Rule 3.04(a) by knowingly failing to obey a court order requiring production of the evidence. Such conduct could also violate Rule 3.04(d), which provides: “A lawyer shall not . . . knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.” Finally, a lawyer acts “unlawfully” for purposes of Rule 3.04(a) if the lawyer knowingly fails to provide evidence when disclosure is mandated by the rules of the tribunal, a subpoena, a discovery obligation, a cooperation agreement, or the like (hereafter, a “Mandatory Disclosure Obligation”). It is not unlawful, however, for an attorney to withhold ordinary tangible evidence pending a ruling on a good faith, legally available objection, motion for protection, or other procedurally legitimate challenge to a Mandatory Disclosure Obligation. Mandatory Disclosure Obligations of criminal defense counsel. There is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant. Absent a court order, therefore, a lawyer who receives ordinary tangible evidence from a client

generally does not have an obligation to turn over the evidence to the prosecuting authority. In such a situation, the lawyer does not act unlawfully, and consequently does not violate Rule 3.04(a), merely by maintaining non-destructive custody of such evidence. Special Criminal Evidence. It is generally accepted that a lawyer has a self-executing obligation to turn over some special types of tangible evidence. This opinion will refer to such evidence as “Special Criminal Evidence,” as opposed to “ordinary evidence.” The definition of Special Criminal Evidence varies by jurisdiction, but generally includes contraband, the instrumentalities of a crime, or the fruits of a crime. Common examples are illegal narcotics, a murder weapon, and stolen jewelry. Depending on the jurisdiction, the definition of Special Criminal Evidence may also include documents and records directly involved in the perpetration of a crime, such as book-making receipts or falsified records, as well as other direct evidence of the client’s involvement in the crime (such as a bloody glove). The rationales offered to support the obligation to turn over Special Criminal Evidence are that (1) possession of such evidence— by anyone—is usually illegal, (2) preparing the client’s defense does not require counsel to possess the evidence, and (3) any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession. Most United States courts that have considered the issue have held that a lawyer who comes into possession of Special Criminal Evidence—however defined in that jurisdiction—has a selfexecuting obligation to turn over the evidence to police or other law enforcement authorities. See Rubin v. State, 602 A.2d 677, 686 (Md. 1992) (collecting cases); see also Hitch v. Pima County Superior Court, 708 P.2d 72, 75 (Ariz. 1985); In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime”); see generally Restatement (Third) of the Law Governing Lawyers § 119 (2000) (lawyer must notify prosecuting authorities or turn over the evidence after reasonable time for non-destructive testing); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives under the Stairs; 89 Wash. L. Rev. 819 (2014); Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011). It appears to be the general rule that, before turning over Special Criminal Evidence to law enforcement authorities, a lawyer may be allowed to examine the evidence and subject it to tests that do not alter or destroy material characteristics of the evidence. Restatement (Third) of the Law Governing Lawyers § 119 (2000). It also appears to be the general rule that if a lawyer turns over Special Criminal Evidence acquired from a client, the trial court should not allow the jury to learn the source of the evidence. See Rubin v. State, 602 A.2d at 688 (collecting cases); see also Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997) (holding that trial court properly compelled lawyer to turn over maps received from client when kidnapping victim was possibly still alive, but noting that neither the client’s communications to the attorney nor the attorney’s communications to law enforcement could be admitted at trial); Sanford v. State, 21 S.W.3d 337, 344 (Tex. App.—El Paso 2000, no pet.), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“[b]y allowing the State to recover the evidence, the public

interest is served, and by refusing the State an opportunity to disclose the source of the evidence, the attorney-client privilege is preserved”). At least one jurisdiction has endorsed a procedure designed to avoid disclosing the source of the evidence to the prosecution. See District of Columbia Rules of Professional Conduct, Rule 3.4, Comment 5 (D.C. Office of Bar Counsel may accept evidence and turn it over to proper authorities without revealing its source, thereby preserving the defense lawyer’s obligation of confidentiality). At present, the scope of a lawyer’s self-executing obligation to turn over Special Criminal Evidence has not been well-defined in reported Texas law. E.g., Sanford v. State, 21 S.W.3d at 344, n. 6 (declining to decide question of whether attorney had an obligation to reveal to law enforcement the location of an instrumentality of the crime, which the lawyer had learned from client); Henderson v. State, 962 S.W.2d at 556 (referring to “cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney”). For purposes of this opinion it is sufficient to note that a Texas court might recognize a self-executing obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04. Application to assumed facts. The Committee now turns to the specific statement of facts presented at the start of this opinion. The assumed facts involve an incarcerated client who, during a jailhouse visit, gives tangible evidence (letters) to his lawyer. At the time of receipt, the lawyer is not subject to any order or agreement that mandates producing the evidence to the State. The lawyer declines to produce the letters in response to an informal request from the prosecuting attorney but produces the letters when ordered to do so by the trial court. The lawyer is not subject to a self-executing obligation of production by virtue of the special character of the evidence. A letter from a victim does not qualify as Special Criminal Evidence, even if the letter might be incriminating or exculpatory. Specifically, such a letter is “ordinary evidence”—it is not contraband, a fruit or instrumentality of the alleged crime, a document directly involved in the perpetration of a crime, or other direct evidence of the client’s involvement in the crime (such as a bloody glove). A Texas criminal defense attorney has no obligation to turn over ordinary tangible evidence to the prosecuting attorney. That the lawyer receives the ordinary tangible evidence from an incarcerated client does not change the result, assuming the lawyer does not violate the law in the process. No obligation to accept custody of evidence tendered by client accused of a crime. The Committee also notes that a lawyer is under no obligation to accept or act as custodian of tangible evidence tendered by a client accused of a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and assuming the lawyer counsels the client as to the applicable laws regarding evidence preservation, the most prudent course is often to decline a client’s request to accept custody of evidence related to an alleged crime. See generally "What Do I Do with the Porn on My Computer”: How a Lawyer Should Counsel Clients About

Physical Evidence, 54 Am. Crim. L. Rev. 751 (2017) (comprehensive discussion of advice that lawyers should give clients if lawyer declines to take possession of tangible evidence). Unaddressed issues. This opinion does not address (a) the destruction or alteration of evidence, (b) a lawyer’s obligation with respect to mere information received from a client related to tangible evidence (e.g., the location of a corpse or murder weapon), (c) a lawyer’s obligation with respect to tangible evidence independently discovered by the lawyer or the lawyer’s agents, (d) evidence that is not provided directly to the lawyer by the client, or (e) evidence that might exonerate a co-defendant or third-party. The Committee also cautions that it offers no opinion regarding the application of criminal obstruction statutes and that prosecuting authorities may take a broad view on what conduct constitutes criminal obstruction or concealment. CONCLUSION A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement. The common law may impose a self-executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence, such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a). Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so. A lawyer is under no obligation to accept tangible evidence from a client charged with a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime.

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

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

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

MARCH 2014

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